Citation Nr: 21068912 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 15-38 525 DATE: November 15, 2021 ORDER Entitlement to an effective date earlier than October 22, 2013, for the grant of service connection for bilateral hearing loss is denied. REMANDED Entitlement to a rating greater than 10 percent for bilateral hearing loss is remanded. Entitlement to service connection for lung cancer is remanded. FINDINGS OF FACT 1. The Veteran claimed service connection for left ear hearing loss in January 1957. The Agency of Original Jurisdiction (AOJ) denied the Veteran's claim in April 1957. The Veteran's appealed to the Board of Veterans' Appeals (Board). In April 1958, the Board denied service connection for left ear hearing loss. The Board's decision was final upon issuance. 2. The Veteran, on October 22, 2013, claimed service connection for bilateral (right and left ear) hearing loss. 3. The AOJ service connected the Veteran's bilateral hearing loss in May 2014. It assigned an effective date of October 22, 2013, for both the right and left ears. CONCLUSION OF LAW The criteria for an effective date earlier than October 22, 2013 for the grant of service connection for bilateral hearing loss have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.160, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1954 to January 1957. This matter comes before the Board on appeal from rating decisions issued in May 2014 and January 2015 by an AOJ of the Department of Veterans Affairs (VA). The Veteran died in August 2017. The Appellant is the Veteran's widow, whom the AOJ substituted in June 2020. The Veteran, in his October 2015 VA Form 9, requested a Board hearing. He died before he could testify. The Board, in September 2021, offered the Appellant the opportunity to testify. The Appellant, in October 2021, declined the opportunity and instructed the Board to adjudicate the appeal. The Board has advanced the Appellant's case on the docket due to other sufficient cause (the Appellant's age is 75 or more years). See 38 C.F.R. § 20.902(c)(2). Issue 1: Entitlement to an effective date earlier than October 22, 2013, for the grant of service connection for bilateral hearing loss Earlier Effective Date Background Law The provisions for the determination of an effective date of an award of compensation are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of the award of an evaluation based on an original claim, a claim reopened after a final disallowance, or a claim for an increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Under VA laws and regulations, a specific claim in the form prescribed by the VA must be filed for benefits to be paid or furnished to any individual under laws administered by the VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Analysis The Veteran claimed service connection for left ear hearing loss in January 1957. The AOJ denied the Veteran's claim in April 1957. The Veteran's case was appealed to the Board. In April 1958, the Board denied service connection for left ear hearing loss. The Board's decision was final upon issuance. 38 C.F.R. § 20.1100. The Veteran, on October 22, 2013, claimed service connection for bilateral (right and left ear) hearing loss. The AOJ service connected the Veteran's bilateral hearing loss in May 2014. It assigned an effective date of October 22, 2013, the day VA received the Veteran's claim, for both the right and left ears. The Veteran appealed the effective date assigned for both ears. The Veteran contended that service connection for his hearing loss should go back to the date of his January 1957 claim. The analysis for each ear differs based on the January 1957 claim. The left ear, given the January 1957 claim and April 1958 denial by the Board is a claim reopened after a final disallowance. That is, the April 1958 Board denial was the "final disallowance" because at that time veterans could not appeal Board decisions beyond VA. The Veteran next attempted to reopen his claim for left ear hearing loss on October 22, 2013. As explained above, a grant of benefits under this circumstance, i.e., a claim reopened after a final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is later. The right ear, in contrast, is an original claim. That is, the Veteran first claimed service connection for right ear hearing loss on October 22, 2013. As explained above, a grant of benefits under this circumstance, i.e., an original claim, will be the date of receipt of the claim or the date entitlement arose, whichever is later. There is no regulatory definition of the phrase "date entitlement arose." However, in Wright v. Gober, 10 Vet. App. 343 (1997), the phrase "date entitlement arose" was found to be similar to the phrase "facts found." This case, along with the regulatory context, strongly suggest that the "date entitlement arose" is the date on which the facts in the case demonstrate that the entitling criteria are first met. The entitling criteria for a claim are frequently met on or before the date of claim based on the lay, medical, and other information presented during the entire process of claim development. When applying the general rule, the assignment of an effective date based on date entitlement arose being later than the date of receipt of the claim is only appropriate when the evidence clearly establishes that the entitling criteria were not met as of the date of receipt of the claim. Here, the date entitlement arose predates the date of claim. The AOJ based its conclusion on development conducted during the claims process, to include a March 2014 VA examination opinion that the Veteran's bilateral hearing loss resulted from service. As such, the AOJ properly selected October 22, 2013 as the effective date for both the right and left ears because the date of claim was later than the date entitlement arose. The Board notes that VA amended its adjudication regulations on March 24, 2015 to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015; therefore, they are not applicable to this appeal. The Board has reviewed the record for informal claims for hearing loss prior to the formal claim received October 22, 2013, but none were found. Given the above, the Board finds that the preponderance of evidence weighs against the Appellant's claim of entitlement to an earlier effective date than October 22, 2013 for the grant of service connection for bilateral hearing loss. As the Veteran is already in receipt of the earliest effective date warranted by law, there is no reasonable doubt to be resolved, and the claim is denied. REASONS FOR REMAND Increased Rating for Hearing Loss The AOJ service connected the Veteran's bilateral hearing loss in May 2014. It rated the hearing loss at 10 percent disabling from October 22, 2013. While two VA compensation examinations are in the record (March 2014 and December 2014), a June 8, 2017 VA treatment record indicates VA examined him for treatment purposes. Specifically, the record states: Veteran seen for a complete audiological re-evaluation today. Veteran's last complete audiological evaluation was on 12/31/14 at which time results revealed a mild to severe, sloping SNHL in the right ear and a moderately-severe to severe, sloping mixed hearing loss in the left ear associated with good-excellent speech recognition ability AU. Veteran was issued binaural Starkey Z Series in-the-canal hearing aids on 12/31/14. Veteran reported general satisfaction with his current hearing aids. suctioned out minimal cerumen from the left aid. A bioacoustic listening check of each aid found them delivering undistorted amplification. Veteran reported just being released from the hospital 5 days ago due to a severe urinary tract infection. Veteran's son reported that left TM perforation occurred at about age 10. Veteran was very cooperative during today's evaluation and the following results were considered to have good reliability. Otoscopic evaluation was clear AU. Insert earphones (ER-3A) were employed throughout today's testing. Test results can be found in CPRS under "Tools" and then "Audiogram Display". Pure tone air and masked bone conduction thresholds revealed a mild to severe mixed hearing loss in the right ear and a moderately-severe to profound, mixed hearing loss in the left ear. Today's results were stable in the right ear and revealed up to a 15dB decrease in the left ear when compared to the 12/31/14 results. Poor speech recognition scores of 52% in the right ear and 60% in the left ear were obtained once speech (recorded NU-6 half-list) was made loud enough to hear in each ear (95-100dBHL). Immittance measures revealed normal eardrum mobility in the right ear and abnormal eardrum mobility in the left ear (flat tympanogram). Contralateral acoustic reflexes were absent from 500-4000Hz and an ipsilateral acoustic reflex was present at 1000Hz in the right ear. Acoustic reflexes could not be assessed from the left ear. Introduced a Comfort Duett unit to the veteran as a back-up with which he agreed; ordered a Comfort Duett unit this date. Also ordered a portable amplifying phone. RECOMMENDATIONS: 1. Continued use of current amplification system. 2. Audiological re-evaluation in 12-24 months. 3. Use of hearing protection devices whenever in an unavoidable excessively noisy environment. The Board does not have access to the underlying test results. Therefore, remand is warranted to attempt to obtain them before rating the disability. Lung Cancer The Veteran, in his February 2015 Notice of Disagreement, claimed that a) he was exposed to cement dust from unloading ships at "Goose Bay Labrodor," and b) he was exposed to lead paint when he worked at the B&O Railroad paint shop in Baltimore. He further claimed that one or both of these in-service exposures caused his lung cancer. The Veteran served in the Army. His DD Form 214 states that his military occupational specialty (MOS) was 811.10, Construction Draftsman. The MOS also indicates the Veteran served, at a minimum, at Fort Belvoir and Fort Eustis, both of which are in Virginia. The MOS lists his "last duty assignment and major command" as "Hq Co 4th TTC-C Ft Eustis, Virginia." His personnel records are scant, and his unit assignments are not clear. That said, they show that he was at Fort Belvoir from April 5, 1954 to June 4, 1954 for a "General Drafting" course. His service treatment records include a November 18, 1954 dental treatment record that says the "source of admission" was Fort Meade, Maryland. The Board is constrained by the limited availability of personnel records. The Board finds the AOJ needs to conduct additional research to determine if the Veteran served at either "Goose Bay Labrodor" or at the B&O Railroad paint shop in Baltimore, as he claimed. After undertaking any development necessary, the AOJ should obtain a medical opinion if it determines the Veteran served at either location. Additionally, the Appellant would help her case by submitting any information she possesses regarding the Veteran's claimed service at "Goose Bay Labrodor" or the B&O Railroad paint shop in Baltimore. The Board encourages the Appellant to consult with her representative to assist her. The matters are REMANDED for the following action: 1. Attempt to obtain the June 8, 2017 audiological examination results from the Lyons VAMC in New Jersey, as indicated in the CAPRI records uploaded on August 3, 2017. The treatment record says, "Test results can be found in CPRS under 'Tools' and then 'Audiogram Display.'" The Board does not have access to CPRS or any associated database, so please arrange to have these records printed and uploaded to VBMS so that the Board may view them. 2. Conduct any development deemed necessary to determine if the Veteran served at either "Goose Bay Labrodor" or at the B&O Railroad paint shop in Baltimore. Document all efforts in the claims file. 3. If, in response to Directive #2, the AOJ determines the Veteran served at either location, obtain a medical opinion from a qualified medical professional for the following question: (Continued on the next page) a) Is it at least as likely as not (50 percent probability) that the Veteran's lung cancer began during, or was otherwise caused by, military service? Why or why not? In answering this question, expressly address the Veteran's contention that he was exposed to cement dust from unloading ships at "Goose Bay Labrodor" and that he was exposed to lead paint when he worked at the B&O Railroad paint shop in Baltimore. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Sopko, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.