HEARING LOSS

T. MAINELLI · 2026 · Case ID: A26040716

DENIED

Summary

The veteran, who served from March 1987 to March 1992, appeals the denial of an initial compensable rating for service-connected bilateral sensorineural hearing loss prior to September 12, 2024. The veteran sought an earlier effective date for a 100 percent rating, arguing continuous pursuit of the claim since February 2022. The Board reviewed the claim under the Appeals Modernization Act. The veteran's initial claim for nonservice-connected pension in 2004 was denied, and subsequent legacy claims for hearing loss were also denied, with the Board finding the evidence submitted within the appeal period was not new and material. The Board noted that the veteran's military personnel records were associated with the claims folder in February 2022, and the first post-legacy claim seeking service connection for hearing loss was filed in May 2022. A September 2022 rating decision granted service connection for bilateral sensorineural hearing loss with a noncompensable rating effective May 6, 2022. The veteran's subsequent attempts to appeal this decision were found to be procedurally deficient. A July 2023 rating decision continued the noncompensable rating. A September 12, 2024, VA examination showed a significant worsening of hearing loss, leading to a 100 percent rating effective September 12, 2024. However, the Board found no medical evidence of record to establish an increase in disability prior to September 12, 2024, and the lay evidence did not pinpoint a specific earlier date for the worsening. Therefore, the Board denied the appeal for an earlier effective date.

Rationale

No medical evidence of record for the time frame in question prior to May 2022.; Lay evidence did not pinpoint a specific earlier date for worsening of disability.; Audiometric findings from June 2023 were consistent with a noncompensable rating.

Special Benefit

EARLIER EFFECTIVE DATE

Diagnostic Code

6100

Docket No.

250918-587789

Full Decision Text

Citation Nr: A26040716
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 250918-587789
DATE: April 30, 2026

ORDER

Entitlement to an initial compensable rating for service-connected bilateral sensorineural hearing loss prior to September 12, 2024, is denied.

FINDING OF FACT

Objective testing shows that the Veteran's bilateral hearing impairment is consistent with a level of hearing resulting in a noncompensable rating prior to September 12, 2024.

CONCLUSION OF LAW

The criteria for entitlement to an initial compensable rating for service-connected bilateral sensorineural hearing loss prior to September 12, 2024, have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.155, 3.156, 3.400, 4.85, 4.86, Diagnostic Code 6100.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from March 1987 to March 1992.

The rating decision on appeal was issued in September 2024; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. See 38 C.F.R. § 3.2400(a)(1).

The Veteran has continuously pursued the appropriate initial rating for bialte4ral hearing loss since a September 2022 rating decision which had granted service connection for bilateral sensorineural hearing loss and assigned a noncompensable rating effective May 6, 2022. In September 2024, the agency of original jurisdiction (AOJ) issued the supplemental claim rating decision on appeal, which increased the disability rating for bilateral sensorineural hearing loss to 100 percent effective September 12, 2024.

In the September 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. He seeks an effective date of May 6, 2022, for the award of a 100 percent rating for hearing loss. The issue on appeal is considered a staged rating with an initial noncompensable rating for service-connected bilateral sensorineural hearing loss assigned prior to September 12, 2024, and the maximum 100 percent schedular rating assigned September 12, 2024. Thus, the issue on appeal is entitlement to an initial compensable rating for service-connected bilateral sensorineural hearing loss prior to September 12, 2024. See Fenderson v. West, 12 Vet. App. 119 (1999) (separate or "staged" ratings must be assigned in initial rating claims where the evidence shows varying levels of disability for separate periods of time).

Therefore, the Board may only consider the evidence of record at the time of the September 2024 AOJ supplemental claim rating decision on appeal. 38?C.F.R. § 20.301. If evidence was submitted after the AOJ issued the supplemental claim rating decision on appeal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300,?20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

RATINGS AND EFFECTIVE DATES

The Veteran seeks a higher initial rating for his service-connected bilateral sensorineural hearing loss disability. His disability was assigned a noncompensable rating from May 6, 2022, and then increased to 100 percent from September 12, 2024. The Veteran contends that the effective date for the 100 percent rating should be in February 2022. See September 2025 VA Form 10182. The Veteran argues that he filed a February 2022 claim for service connection of bilateral hearing loss and that he filed a Notice of Disagreement in May 2022. See November 2024 VA 21-4138. Further, he states that the 2023 and 2024 VA examinations did not create a new disability, but confirmed the ongoing severity of his
. His disability was assigned a noncompensable rating from May 6, 2022, and then increased to 100 percent from September 12, 2024. The Veteran contends that the effective date for the 100 percent rating should be in February 2022. See September 2025 VA Form 10182. The Veteran argues that he filed a February 2022 claim for service connection of bilateral hearing loss and that he filed a Notice of Disagreement in May 2022. See November 2024 VA 21-4138. Further, he states that the 2023 and 2024 VA examinations did not create a new disability, but confirmed the ongoing severity of his hearing loss. See September 2025 Correspondence.

The AMA applies to all claims originally decided after February 19, 2019. See Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017).

Prior to February 19, 2019, the Legacy system rules apply. Under 38 U.S.C. § 7105(a) in effect prior to February 19, 2019, an appeal to the Board after an initial AOJ decision must be initiated by a notice of disagreement (NOD) and completed by a Substantive Appeal (VA Form 9 or equivalent) after a Statement of the Case (SOC) was furnished to the claimant. In essence, the following sequence was required: there must be a rating decision by the AOJ, the claimant must express timely disagreement with the decision (a NOD), VA must respond by explaining the basis of the decision to the claimant (a SOC), and finally the claimant, after receiving adequate notice of the basis of the decision, must complete the process by stating his or her argument in a timely-filed Substantive Appeal (VA Form 9 or equivalent). See 38 C.F.R. §§ 3.103, 20.200, 20.201, 20.202, 20.302 (in effect prior to February 19, 2019). Proper completion and filing of a Substantive Appeal were the last actions a claimant needed to take to perfect an appeal. 38 C.F.R. § 20.202. Subsequently, certification of issues on appeal to the Board by the AOJ by way of a VA Form 8 (Certification of Appeal) should occur for administrative purposes. See 38 C.F.R. § 19.35.

With regard to finality, under the previous Legacy system for claims not subject to the AMA system, an AOJ decision became final unless an NOD is filed, or new and material evidence was received within one year of the AOJ decision. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. Stated another way, under the previous legacy system, a "finally adjudicated claim" was a claim that was adjudicated by the VA as either allowed or disallowed when whichever of the following occurred first: (i) the expiration of the one-year period in which to file a NOD, pursuant to the provisions of §19.52(a) or §20.502(a) of this chapter, as applicable; or (ii) disposition on appellate review. 38 C.F.R. § 3.160(d)(1). In other words, a rating action becomes "final" by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earliest. Id. In this regard, the Court has confirmed an AOJ decision becomes final "only after the period for appeal has run." Jennings v. Mansfield, 509 F.3d. 1362, 1368 (Fed. Cir. 2007).

However, for a Legacy appeal, if the Veteran filed an NOD, but VA failed to act on the NOD appeal by issuing a SOC, or if VA failed to act on new and material evidence received under § 3.156(b) by readjudicating the claim, the claim remained pending. See 38 C.F.R. § 3.160(c) (a pending claim is an application, formal or informal, which has not been finally adjudicated); Adams v. Shinseki, 568 F.3d. 956, 960 (Fed. Cir. 2009). The pending claims doctrine provided that a claim remained pending in the adjudication process-even for years-if VA failed to act on it. Ingram v. Nicholson,
Veteran filed an NOD, but VA failed to act on the NOD appeal by issuing a SOC, or if VA failed to act on new and material evidence received under § 3.156(b) by readjudicating the claim, the claim remained pending. See 38 C.F.R. § 3.160(c) (a pending claim is an application, formal or informal, which has not been finally adjudicated); Adams v. Shinseki, 568 F.3d. 956, 960 (Fed. Cir. 2009). The pending claims doctrine provided that a claim remained pending in the adjudication process-even for years-if VA failed to act on it. Ingram v. Nicholson, 21 Vet. App. 232, 240 (2007); Norris v. West, 12 Vet. App. 413, 422 (1999). The Court has confirmed that raising a pending claim theory in connection with a challenge to the effective-date decision is procedurally proper. Ingram, 21 Vet. App. at 249-255 (2007). See also Myers v. Principi, 16 Vet. App. 228, 236 (2002) (since VA failed to issue SOC after valid NOD was filed, the original claim was still pending and is relevant to determining the effective date of a service connection award); McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (a claim that has not been finally adjudicated remains pending for purposes of determining the effective date for that disability).

Under the AMA, a claimant has three administrative review options for an adverse decision which must be filed within one year from notice of a decision - 1) a request for Higher Level Review (HLR), 2) an appeal to the Board, or 3) the filing of a supplemental claim. 38 C.F.R. § 3.2500. Timely filing an appropriate administrative review option under 38 C.F.R. § 3.2500 may preserve an effective date from a claim which is continuously pursued. 38 C.F.R. § 3.2500(h)(1).

VA intended the AMA to broadly recognize three types of claims: a supplemental claim, an initial claim, and a claim for increase. 84 Fed. Reg. 138, 139 (Jan 18, 2019). However, the Court of Appeals for Veterans Claims (Court) has held that VA regulations governing administrative review options are claims processing rules, see Hall v. McDonough, 34 Vet. App. 329, 333 (2021), and has also held that a supplemental claim need not be filed on a specific VA form. See Chisholm v. Collins, No. 22-7028, 2025 U.S. App. Vet. Claims LEXIS 336, at *16-*20 (March 13, 2025).

An earlier effective date may be warranted if there is continuous pursuit of a previously denied decision. 38 C.F.R. § 3.2500(h). There is continuous pursuit, for example, when a supplemental claim is received within one year from notice of a decision. 38 C.F.R. § 3.2500(a). There is no continuous pursuit when a supplemental claim is received more than one year after notice of a decision. 38 C.F.R. § 3.2500(h).

An effective date of any increase may precede the date of the receipt of the claim, if it was factually ascertainable that an increase in disability had occurred during the preceding year, provided that the application was received within one year after such date. Therefore, the Board must review the evidence of record to determine whether it is factually ascertainable that an increase in disability had occurred within the one-year period prior to the claim, which the Board finds is May 2, 2022, as discussed below. See 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997).

Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. In cases involving direct service connection, the effective date will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will
400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997).

Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. In cases involving direct service connection, the effective date will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i).

The reference above to "the date entitlement arose" is not defined in the current statute or regulation. The Court of Appeals for Veterans' Claims (Court) has interpreted it as the date when the claimant met the requirements for the benefits sought; this is determined on a "facts found" basis. See 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). These "facts found" include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. However, the date entitlement arose is not the date that VA receives the evidence, but the date to which that evidence refers. McGrath, 14 Vet. App. at 35.

"Claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Under regulations effective prior to March 24, 2015, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, may be considered an informal claim. However, such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary (i.e., VA Form 21-526). 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a).

As such, any communication or action in this case, indicating an intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. Upon receipt of an informal claim, if a formal claim has not been filed, an application form must be forwarded to the claimant for execution. If the application form is received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

One exception to finality is the receipt of new and material evidence prior to the finality of a rating decision, which requires readjudication of the claim. 38 C.F.R. § 3.156(b). However, this is limited to claims filed prior to the AMA effective February 19, 2019. See The Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017). Another exception to the general rule involves the receipt of previously unconsidered service records under 38 C.F.R. § 3.156(c).

In this regard, the regulation provides that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official
of the claim. 38 C.F.R. § 3.156(b). However, this is limited to claims filed prior to the AMA effective February 19, 2019. See The Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017). Another exception to the general rule involves the receipt of previously unconsidered service records under 38 C.F.R. § 3.156(c).

In this regard, the regulation provides that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). As such, new and material evidence is not needed to reopen a previously denied claim when relevant service treatment records and/or any other relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis.

Under 38 C.F.R. § 3.156(c)(2), the exception to finality under 38 C.F.R. § 3.156(c)(1) does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the JSRRC, or from any other official source. See also Mayhue v. Shinseki, 24 Vet. App. 273 (2011); Vigil v. Peake, 22 Vet. App. 63, 66-67 (2008).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).

The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992).

The severity of a hearing loss disability is determined by applying the criteria set forth at 38 C.F.R. § 4.85. Under these criteria, evaluations of bilateral hearing loss 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 pure tone hearing threshold level, as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 Hertz, or cycles per second, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(a), (d).

Table VI, "Numeric Designation of Hearing Impairment Based on Pure tone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the pure tone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone threshold average intersect. 38 C.F.R. § 4.85(b).

Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage evaluation by
numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(a), (d).

Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing, while the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). In addition, 38 C.F.R. § 4.86 applies to exceptional patterns of hearing impairment. Under its provisions, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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. Each ear will be evaluated separately. When the 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 numeral. 38 C.F.R. § 4.86.

When after careful consideration of all procurable and assembled data, if a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall 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.

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999).

Factual History

Turning to the facts, the Veteran filed a claim for entitlement to a nonservice-connected pension on August 28, 2003. As part of that claim, the Veteran underwent an October 2003 General Medical VA examination in which the Veteran reported poor hearing due to service and was diagnosed with mild to moderate sensorineural hearing loss (AD) and mild sensorineural hearing loss (AS). The claim was denied in a January 8, 2004, rating decision. The Veteran was notified of this decision and his appellate rights by letter that same month.

In September 2004, the Veteran requested an application for benefits (VA Form 21-526) and which VA provided that same month. See September 2004 Notification Letter. In October 2004, VA notified the Veteran by letter of receipt of a claim for heart disease, hypertension, and right ear defect. See October 2004 VCAA/DTA Letter. A January 2005 rating decision informed the Veteran that a September 28, 2004 VA Form 21-526 had been received which again claimed nonservice-connected pension, as well as hypertension, hearing loss, and ischemic heart disease. All of these issues were denied in the January 2005 rating decision. The Veteran was notified of this decision and his appellate rights by letter that same month. The letter contained a section entitled, "What You Should Do If You Disagree With Our Decision," and explained the Veteran had one year from the date of the letter to appeal the decision and enclosed VA Form 4107 for that purpose.

In February 2005, the Veteran requested reevaluation of the claim for nonservice-connected pension. See February 2005 Correspondence. VA acknowledged the request in a March 2005 letter. In May 2005, the Veteran submitted medical evidence which included a handwritten statement from a physician which confirmed the Veteran's right ear hearing loss. See May 2005 Medical Treatment Record - Non-Government
was notified of this decision and his appellate rights by letter that same month. The letter contained a section entitled, "What You Should Do If You Disagree With Our Decision," and explained the Veteran had one year from the date of the letter to appeal the decision and enclosed VA Form 4107 for that purpose.

In February 2005, the Veteran requested reevaluation of the claim for nonservice-connected pension. See February 2005 Correspondence. VA acknowledged the request in a March 2005 letter. In May 2005, the Veteran submitted medical evidence which included a handwritten statement from a physician which confirmed the Veteran's right ear hearing loss. See May 2005 Medical Treatment Record - Non-Government Facility. In June 2005, the Veteran underwent a VA audiology examination which noted the Veteran's complaint of bilateral hearing loss and tinnitus. The Veteran was diagnosed with sensorineural hearing loss at a June 2005 VA General Medical examination. An August 2005 rating decision denied the claim for a nonservice-connected pension. The Veteran was notified of this decision and his appellate rights by letter that same month.

In September 2005, the Veteran filed a VA Form 21-526 again seeking a nonservice-connected pension. The record shows an August 2006 letter from VA acknowledging a status request from the Veteran. VA enclosed a copy of August 2005 rating decisions which had denied the claim for a nonservice-connected pension. There are no documents associated with the record thereafter until 2012, when VA letters to the Veteran acknowledged that the claim for a nonservice-connected pension was being processed. See February 2012 and September 2012 VCAA/DTA Letter.

In February 2013, the Veteran filed a VA Form 21-526. The list of disabilities were stated as, "incurred and aggravated in line of duty as well as Gulf War related diseases and its contaminants" and onset and treatment were described as "refer on record." In April 2013, the Veteran underwent a VA General Pension examination which noted the Veteran's diagnoses of hearing loss and tinnitus. A May 2013 rating decision denied the claim for a nonservice-connected pension. The Veteran was notified of this decision by letter that same month. There are no documents associated with the record thereafter until 2022.

In February 2022, the Veteran's military personnel records were associated with the claims folder. In May 2022, the Veteran submitted a VA 21-526EZ seeking service connection for multiple issues including hearing loss, a complete claim.

Also in May 2022, the Veteran submitted a VA Form 20-0995 (supplemental claim) for multiple issues including hearing loss. However, the supplemental claim was unsigned and the VA notified the Veteran in June 2022 that the supplemental claim would not be processed. However, if a corrected and complete claim was received within 60 days, VA would consider it as filed as of the date of receipt of the incomplete application.

A June 2022 VA letter notified the Veteran that a claim for benefits had been received on May 2, 2022. See June 2022 Notification Letter.

In July 2022, the Veteran resubmitted the supplemental claim and he underwent a VA audiology examination for tinnitus only.

In August 2022, the Veteran underwent a VA audiology examination in which he was diagnosed with bilateral sensorineural hearing loss. His speech discrimination scores using the Maryland CNC word list were 96 percent bilaterally. The examiner rendered a positive nexus opinion at this time. His audiometric findings were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 40 40 45 50 50

LEFT 45 35 45 50 50

An August 26, 2022, rating decision granted service connection for tinnitus and other issues. The Veteran was notified of this decision by letter that same month. A later September 9, 2022, rating decision granted service connection for bilateral sensorineural hearing loss and assigned a noncompensable rating effective May 6, 2022. This rating decision identified May 6, 2022, as the date that VA received the Veteran's incomplete application form. The Veteran was notified of this decision by letter in September 2022.

In October 2022, the Veteran submitted a VA Form 21-4138 statement that he "appeal[s] a motion of reconsideration" as to "decision . . . last August 29 which I received last Sept. 19, 2022" for issues including hearing loss.

In May 2023, the Veteran
later September 9, 2022, rating decision granted service connection for bilateral sensorineural hearing loss and assigned a noncompensable rating effective May 6, 2022. This rating decision identified May 6, 2022, as the date that VA received the Veteran's incomplete application form. The Veteran was notified of this decision by letter in September 2022.

In May 2023, the Veteran submitted a VA 21-526EZ seeking service connection for multiple issues including hearing loss. Also in May 2023, he submitted a VA Form 20-0995 (supplemental claim) for multiple issues including hearing loss.

In June 2023, the Veteran underwent a VA audiology examination in which he was diagnosed with bilateral sensorineural hearing loss. His speech discrimination scores using the Maryland CNC word list were 84 percent in the right ear and 80 percent in the left ear. His audiometric findings were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 45 45 50 50 60

LEFT 55 45 50 55 60

When assessing functional impact, the examiner noted that the Veteran reported, "when watching TV I have to turn the TV volume up. My wife complains that she has to repeat several times before I respond. When my wife gives instructions, I cannot hear."

A July 2023 rating decision continued the noncompensable rating for service-connected bilateral hearing loss. The Veteran was notified of this decision by letter that same month.

In January 2024, a rating decision denied service connection for multiple issues; however, hearing loss was not one of those issues.

In June 2024, the Veteran submitted a VA Form 20-0995 (supplemental claim) for multiple issues including hearing loss. The Veteran's wife provided a statement that his hearing loss developed in service, which she signed on May 15, 2024. See June 2024 VA Form 21-10210. She described his current symptoms as becoming increasingly apparent: that he has difficulty following conversations, others must speak louder or repeat themselves, that he turns up the television volume, and that he avoids social gatherings due to his hearing struggles. Id.

Also in June 2024, the Veteran filed a VA 21-4138 statement asserting that by that submission he therein filed a notice of disagreement as to a January 9, 2024, denial decision.

On September 12, 2024, the Veteran underwent a VA audiology examination in which he was diagnosed with bilateral sensorineural hearing loss. His speech discrimination scores using the Maryland CNC word list were reported as "could not test" and explained that use of such a score was not appropriate for this Veteran. His audiometric findings were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 105 105 105 105 105

LEFT 105 105 105 105 105

When assessing functional impact, the examiner noted that the Veteran was not able to describe it in his own words due to his current hearing threshold or in fact even answer the examiner's questions. The Veteran's companion reported that he was isolating himself whenever speech conversation was happening in the household, even to his wife. The examiner concluded that the Veteran's symptoms had worsened.

A September 26, 2024, rating decision increased the disability evaluation for the Veteran's service-connected bilateral sensorineural hearing loss to 100 percent effective from September 12, 2024, the date the VA examination showed an increase in disability. The Veteran was notified of this decision by letter that same month.

The Veteran thereafter submitted statements arguing that he filed a hearing loss claim in February 2022. See November 2024 VA Form 21-4138. When he received a 0 percent rating, he argues that he filed a Notice of Disagreement on May 26, 2022. The Veteran further argues in response to a July 2023 rating decision, he in turn filed a July 5, 2024, Notice of Disagreement. He asserts that by submission of this November 2024 statement, he therein files a notice of disagreement for "payment of my backpay" retroactive to the date he filed the claim.

In February 2025, VA notified the Veteran by letter of receipt of the claim
statements arguing that he filed a hearing loss claim in February 2022. See November 2024 VA Form 21-4138. When he received a 0 percent rating, he argues that he filed a Notice of Disagreement on May 26, 2022. The Veteran further argues in response to a July 2023 rating decision, he in turn filed a July 5, 2024, Notice of Disagreement. He asserts that by submission of this November 2024 statement, he therein files a notice of disagreement for "payment of my backpay" retroactive to the date he filed the claim.

In February 2025, VA notified the Veteran by letter of receipt of the claim for an earlier effective date. Additionally, VA reminded the Veteran of a September 2024 notice of decision regarding an earlier effective date which had been previously sent. The letter instructed the Veteran to refer to the notice of decision if he wished to pursue further review options and that he had until September 27, 2025, to do so.

In September 2025, the Veteran submitted his VA Form 10182 Notice of Disagreement as to the September 2024 rating decision. He identified the issue on appeal as an "earlier effective date for the grant of 100% service-connected hearing loss" and stated he seeks a February 2022 effective date.

He again argued that that he filed an original February 2022 claim and a Notice of Disagreement in May 2022, and argues continuous pursuit. See September 2025 Correspondence. Further, he stated that the 2023 and 2024 VA examinations did not create a new disability, but confirmed the ongoing severity of his hearing loss. Id.

Analysis

At the outset, the Board finds that the legacy claims in which the Veteran sought a nonservice-connected pension are not for appellate review. While the claim was based, in part, on the Veteran's hearing loss, it is not part of this appeal.

The Board acknowledges that the AOJ adjudicated and denied a legacy claim for service connection of hearing loss in a January 2005 rating decision. The Veteran was notified of this decision and his appellate rights by letter that same month. The Veteran did not file an appeal within one year of the notice of decision. Medical evidence was received in the claims folder within one year of the notice of decision (e.g., May 2005 Medical Treatment Record - Non-Government Facility; June 2005, VA audiology examination; June 2005 VA General Medical examination). However, the Board finds such evidence was received in connection with the Veteran's February 2005 request for reevaluation of the nonservice-connected pension claim. Additionally, the Board finds that such evidence was not new and material to warrant readjudication of the legacy hearing loss claim.

"New" evidence is evidence not previously part of the actual record before agency adjudicators. 38 C.F.R. 3.156(a). "Material" evidence meant existing evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim. Id. New and material evidence could be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id.

Here, the 2005 medical evidence received in the one year after the notice of the January 2005 rating decision while new, was not material. The evidence merely confirmed that the Veteran had a diagnosed hearing loss disability. That was already an established fact of record prior to the January 2005 adjudication (e.g., October 2003 VA examination).

In February 2022, May 2022, and November 2024, the Veteran's military personnel records were associated with the claims folder. One file of service treatment records (STRs) contained the Veteran's January 1987 Reports of Medical History and Medical Examination at his enlistment. See Military Personnel Record, received by VA February 2022. However, those had already been received and previously considered by VA. See March 2000 STR - Medical. As they are duplicate STRs, they do not meet the exceptions to finality provided by 38 C.F.R. § 3.156(c) - (c)(2).

Therefore, the Board finds that the January 2005 rating decision became final as to the denial of service connection for hearing loss.

The issue now on appeal is an increased rating for service-connected hearing loss, as identified in the September 2025 VA Form 10182. When examining the record, the Board finds that the analysis therefore starts with document associated with
. See Military Personnel Record, received by VA February 2022. However, those had already been received and previously considered by VA. See March 2000 STR - Medical. As they are duplicate STRs, they do not meet the exceptions to finality provided by 38 C.F.R. § 3.156(c) - (c)(2).

Therefore, the Board finds that the January 2005 rating decision became final as to the denial of service connection for hearing loss.

The Board summarizes the Veteran's arguments as follows: that he (1) filed a February 2022 claim and such should be the effective date for the 100 percent rating; (2) filed a May 2022 Notice of Disagreement; (3) filed a June 2024 VA Form 21-4138 as a Notice of Disagreement to a January 9, 2024, rating decision; (4) filed a July 5, 2024, Notice of Disagreement in response to a July 2023 rating decision; (5) filed a November 2024 VA Form 21-4138 as a Notice of Disagreement for "payment of my backpay" retroactive to the date he filed the claim; (6) has continuously pursued the claim; and, that (7) 2023 and 2024 VA examinations did not create a new disability, but confirmed the ongoing severity of his hearing loss.

This is a case involving a claim for direct service connection in which the claim was received years after the Veteran's discharge from service in 1992. The law provides that the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i).

As stated previously, military personnel records were associated with the claims folder in February 2022. There is not a February 2022 claim nor a May 2022 Notice of Disagreement of record for hearing loss, as the Veteran argues. Thus, an earlier effective date back to February 2022 is not warranted.

Instead, the record reflects that the first post-legacy claim seeking service connection for hearing loss was a May 12, 2022, VA Form 21-526EZ claim. A May 12, 2022, VA Form 20-0995 supplemental claim was also filed but incomplete.

A June 2022 VA letter notified the Veteran that a claim for benefits had been received on May 2, 2022. The Veteran resubmitted the VA Form 20-0995 supplemental claim on July 7, 2022, within 60 days of receipt of the incomplete claim.

A September 9, 2022, rating decision granted service connection for bilateral sensorineural hearing loss and assigned a noncompensable rating effective May 6, 2022. This rating decision identified May 6, 2022, as the date that VA received the Veteran's incomplete application form.

There are discrepancies in the record as to when the Veteran's AMA claim seeking service connection for hearing loss was received. The earliest date, however, is May 2, 2022, as stated by the AOJ in the June 2022 VA notification letter. The Board finds that when affording the Veteran the benefit of the doubt, May 2, 2022, is the date of claim.

Following the September 2022 rating decision granting service connection, the Veteran filed an October 2022 VA Form 21-4138 statement in which he attempted to appeal that rating decision. The Board is obligated to liberally construe Notices of Disagreement for the purpose of determining what issues are raised on appeal. 38 C.F.R. § 20.202(a). However, 38 U.S.C. § 7105(a) provides that "[a]ppellate review shall be initiated by the filing of a notice of disagreement in the form prescribed by the Secretary." Here, the Veteran did not file the required form, a VA Form 10182, to initiate an appeal in October 2022.

May 2023 filings of VA Forms 21-526EZ and 20-0995 included the issue of hearing loss. As the May 2023 VA Form 20-0995 was filed within one year of the September 2022 rating decision, the AOJ readjudicated the claim. A July 2023 rating decision continued
20.202(a). However, 38 U.S.C. § 7105(a) provides that "[a]ppellate review shall be initiated by the filing of a notice of disagreement in the form prescribed by the Secretary." Here, the Veteran did not file the required form, a VA Form 10182, to initiate an appeal in October 2022.

May 2023 filings of VA Forms 21-526EZ and 20-0995 included the issue of hearing loss. As the May 2023 VA Form 20-0995 was filed within one year of the September 2022 rating decision, the AOJ readjudicated the claim. A July 2023 rating decision continued the noncompensable rating for service-connected bilateral hearing loss. The Veteran was notified of this decision by letter that same month. He did not appeal.

The Veteran argues that he filed a June 2024 VA Form 21-4138 as a Notice of Disagreement to a January 9, 2024, rating decision. The Board observes that a January 2024 rating decision is of record which denied service connection for multiple issues; however, hearing loss was not one of those issues. Additionally, the Veteran filed a June 2024 VA Form 21-4138 statement in which he attempted to appeal the January 2024 rating decision. The Board finds that the Veteran did not file the required VA Form 10182 to initiate an appeal at that time.

Similarly, the Veteran argues that he filed a July 5, 2024, Notice of Disagreement in response to a July 2023 rating decision. There is not a July 5, 2024, Notice of Disagreement of record.

A June 2024 VA Form 20-0995 was filed within one year of the July 2023 rating decision which continued the noncompensable rating for service-connected bilateral hearing loss. The AOJ thus readjudicated the claim. Medical evidence received in connection with the readjudication of the hearing loss claim included the June 2024 statement by the Veteran's wife and a September 12, 2024, VA audiology examination. A September 26, 2024, rating decision increased the disability evaluation for the Veteran's service-connected bilateral sensorineural hearing loss to 100 percent effective from September 12, 2024, the date the VA examination showed an increase in disability.

The Veteran argues that he filed a November 2024 VA Form 21-4138 as a Notice of Disagreement. The Board finds that the Veteran did not file the required VA Form 10182 to initiate an appeal at that time.

In September 2025, the Veteran submitted his VA Form 10182 Notice of Disagreement as to the September 2024 rating decision on appeal. He identified the issue on appeal as an "earlier effective date for the grant of 100% service-connected hearing loss" and stated he seeks a February 2022 effective date.

The Veteran argues continuous pursuit of the claim and that VA examinations in 2023 and 2024 confirmed the ongoing severity of his hearing loss.

The Board acknowledges that the Veteran has continuously pursued service connection for hearing loss since May 2, 2022, the date of claim. The Veteran's grant of service connection was awarded effective May 6, 2022 (amended herein to May 2, 2022).

In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal concerning an initial assignment of a disability rating was not limited to that reflecting the then-current severity of the disorder. The Board must review the evidence of record to determine whether it is factually ascertainable that an increase in disability had occurred within the one-year period prior to May 2, 2022. See 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997).

There is no medical evidence of record for the time frame in question. Prior to the filing of the May 2022 claim, the record is silent between May 2013 and February 2022. In February 2022, military personnel records were associated with the claims file, and then the claim was filed in May 2022.

VA clinical medical evidence of record reflects treatment from October 2003 through April 2013, but does not contain any evidence regarding the Veteran's hearing loss. See generally, CAPRI records.

Other medical records associated with the claims file do not contain any evidence regarding the Veteran's hearing loss
v. Brown, 10 Vet. App. 125, 126 (1997).

VA clinical medical evidence of record reflects treatment from October 2003 through April 2013, but does not contain any evidence regarding the Veteran's hearing loss. See generally, CAPRI records.

Other medical records associated with the claims file do not contain any evidence regarding the Veteran's hearing loss for the one-year period prior to May 2022. See generally, Medical Treatment Records - Non-Government Facility; Other Tests Results - Veteran Provided.

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Relevant regulations do not require that all cases show all findings specified by the Schedule; however, findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7, 4.21.

If two disability evaluations are potentially applicable, the higher evaluation 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. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3.

Per 38 C.F.R. § 4.85, 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 puretone audiometry test. Examinations are conducted without the use of hearing aids.

Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect. 38 C.F.R. § 4.85.

Table VIA, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average. Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86.

"Puretone threshold average," as used in Tables VI and VIA, is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. This average is used in all cases (including those in 38 C.F.R. § 4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIA.

In addition, 38 C.F.R. § 4.86 applies to exceptional patterns of hearing impairment. Under its provisions, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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. Each ear will be evaluated separately. When the 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 numeral. 38 C.F.R. § 4.86.

Turning to the relevant VA examinations, a July 2022 VA examination assessed the Veteran's tinnitus only. At the August 2022 VA examination, objective testing showed the Veteran's speech recognition percentages were 96 percent bilaterally. Audiometric puretone averages were consistent with a level of hearing resulting in a noncompensable rating under Diagnostic Code 6100, 38 C.F.R. § 4.85, Table VII.

At a June 2023 VA examination, objective testing showed the Veteran's speech discrimination scores were 84 percent in the right ear and 80 percent in the left ear. When assessing functional impact, the examiner noted that the Veteran reported, "when watching TV I have to turn the TV volume up. My wife complains that she has to repeat several times before I respond. When my wife gives instructions, I cannot hear." Audiometric puretone averages were again consistent with a level of hearing resulting in a noncompensable rating under Diagnostic Code 6100, 38 C.F.R. § 4.85, Table VII.

The lay statement provided by the Veteran's wife, which she signed on May 15, 2024, described his current symptoms as becoming increasingly apparent: that he has difficulty following conversations, others must speak louder or repeat themselves, that he turns up the television volume, and that he avoids social gatherings due to his hearing struggles. See June 2024 VA Form 21-10210. These descriptions are substantially similar to the level of impairment described at the June 2023 examination.

A September 12, 2024, VA examination, objective testing showed the Veteran's speech discrimination scores could not be tested. When assessing functional impact, the examiner noted that the Veteran was not able to describe it in his own words due to his current hearing threshold or in fact even answer the examiner's questions. The Veteran's companion reported that he was isolating himself whenever speech conversation was happening in the household, even to his wife. The examiner concluded that the Veteran's symptoms had worsened. Audiometric puretone averages were now consistent with a level of hearing resulting in a 100 percent rating under Diagnostic Code 6100, 38 C.F.R. § 4.85, Table VII.

Here, the Veteran's hearing acuity as measured by puretone thresholds dramatically decreased from the June 2023 VA examination and the September 2024 VA examination. The Veteran's word recognition went from 84 percent in the right ear and 80 percent in the left ear in June 2023 to nonexistent at the September 2024 examination. The medical records reflect no medical explanation for such a worsening of hearing impairment. The Board has considered the May 2024 spousal statement as potentially identifying when this increased severity occurred, but the spousal statement of functional impairment is substantially similar to the lay descriptions in June 2023. Thus, the Board finds that it is not factually ascertainable from the lay and medical evidence of any worsening of disability at any reasonably specific date (e.g., month and year for pay purposes (see 38 C.F.R. § 3.31)) prior to September 12, 2024. Notably, the drastic increase from noncompensable to 100 percent disabling substantially derives from the application of 38 C.F.R. § 4.85(c) which allows a rating based solely on puretone threshold averages when use of speech discrimination scores is deemed not appropriate. The Veteran clearly had
, but the spousal statement of functional impairment is substantially similar to the lay descriptions in June 2023. Thus, the Board finds that it is not factually ascertainable from the lay and medical evidence of any worsening of disability at any reasonably specific date (e.g., month and year for pay purposes (see 38 C.F.R. § 3.31)) prior to September 12, 2024. Notably, the drastic increase from noncompensable to 100 percent disabling substantially derives from the application of 38 C.F.R. § 4.85(c) which allows a rating based solely on puretone threshold averages when use of speech discrimination scores is deemed not appropriate. The Veteran clearly had the capability of discriminating speech in 2023.

The Board also acknowledges the Veteran's September 2024 report of vertigo secondary to tinnitus. The evaluation of tinnitus is not part of this appeal. Notably, the issue of service connection for vertigo was the subject of an August 2024 AOJ decision also not on appeal. The Veteran's spouse described social isolation as an aspect of hearing loss, and a January 2024 AOJ decision addressed the issue of service connection for an acquired psychiatric disorder which is also not on appeal.

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Accordingly, the Board finds that an initial compensable rating for service-connected bilateral sensorineural hearing loss prior to September 12, 2024, is not warranted. There is no doubt of material fact to be resolved in the Veteran's favor. 38 U.S.C. § 5107(b); Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009).

T. MAINELLI

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A. Estes

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.

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