Citation Nr: 21077362 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 18-40 625 DATE: December 29, 2021 ORDER An effective date earlier than January 16, 2014 is denied for the grant of service connection for bilateral hearing loss. An effective date earlier than January 16, 2014 is denied for the grant of service connection for hemorrhoids. REMANDED An initial rating higher than 10 percent for service-connected hemorrhoids is remanded. An initial compensable rating for service-connected bilateral hearing loss is remanded. Service connection for allergies is remanded. Service connection for a right knee disorder is remanded. Service connection for a left knee disorder is remanded. FINDINGS OF FACT 1. The March 1982 rating decision denied service connection for bilateral hearing loss. The Veteran did not appeal or submit new and material evidence within the one-year period thereafter. 2. The October 1987 rating decision denied reopening for bilateral hearing loss and service connection for hemorrhoids. The Veteran did not appeal or submit new and material evidence within the one-year period thereafter. 3. The Veteran filed a January 16, 2014 formal claim. 4. Entitlement to service connection for bilateral hearing loss arose prior to the January 2014 claim. 5. Entitlement to service connection for hemorrhoids arose prior to the January 2014 claim. CONCLUSIONS OF LAW 1. The criteria have not been met for an effective date earlier than January 16, 2014 for the grant of service connection for bilateral hearing loss. 38 U.S.C. §§ 5110, 7105; 38 C.F.R. §§ 3.155, 3.160, 3.2501. 2. The criteria have not been met for an effective date earlier than January 16, 2014 for the grant of service connection for hemorrhoids. 38 U.S.C. §§ 5110, 7105; 38 C.F.R. §§ 3.155, 3.160, 3.2501. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1975 to September 1979 and from December 1979 to September 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal from October 2014 and December 2014 rating decisions of the Department of Veteran Affairs (VA) Regional Office (RO). In September 2021, the Veteran presented testimony at a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). Duties to Notify and Assist Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). EARLIER EFFECTIVE DATE Legal Criteria Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for 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. Prior to March 24, 2015, a claim is 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) (2014). The essential elements for any claim, whether formal or informal, are: (1) intent to apply for benefits; (2) identification of the benefits sought; and (3) communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). From March 24, 2015, a claim must be filed on a designated VA form. See 38 C.F.R. § 3.1(p) (2018); 79 Fed. Reg. 57,696 (Sept. 25, 2014). 1. Bilateral hearing loss Factual Background The Veteran filed a formal claim for bilateral hearing loss in October 1981. A March 1982 rating decision denied service connection for bilateral hearing loss because there was no current disability. The Veteran submitted a March 1987 informal claim. An October 1987 rating decision denied reopening of service connection for bilateral hearing loss. The Veteran filed a January 2014 formal claim for bilateral hearing loss. Analysis First, the Board finds the March 1982 and October 1987 rating decisions were final. The Veteran received a March 1982 notification of the decision and an October 1987 notification of the decision. The Veteran did not appeal either decision and did not submit new and material evidence within one year of either decision. Notably, after the October 1987 notification there is nothing in the claims file until January 2014. Accordingly, both prior rating decisions were final. Second, the Board finds January 16, 2014 is the date of claim to reopen. The Veteran submitted a formal claim on January 16, 2014. The last informal claim in the file was submitted in March 1987, prior to the final rating decision. Lastly, the Board finds entitlement arose prior to January 16, 2014. A December 2014 VA examination diagnosed bilateral hearing loss. The examiner explained the current hearing loss was caused by the permanent shift during service between 1975 and 1981. Accordingly, entitlement arose prior to the January 2014 date of claim. The prior rating decisions were final, and the proper effective date is January 16, 2014. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Hemorrhoids Factual Background The Veteran filed an informal claim for hemorrhoids in March 1987. An October 1987 rating decision denied service connection because the Veteran declined a rectal examination. The Veteran filed a January 2014 formal claim for hemorrhoids. Analysis First, the Board finds the October 1987 rating decision was final. The Veteran received an October 1987 notification of the decision. The Veteran did not appeal the decision and did not submit new and material evidence within one year. Notably, after the October 1987 notification there is nothing in the claims file until January 2014. Accordingly, the October 1987 rating decision is final. Second, the Board finds January 16, 2014 is the date of claim to reopen. The Veteran submitted a formal claim on January 16, 2014. The last informal claim in the file was submitted in March 1987, prior to the final rating decision. Lastly, the Board finds entitlement arose prior to January 16, 2014. The Veteran received a September 2014 VA examination. The examiner noted the date of diagnosis for external or internal hemorrhoids was 2005. Accordingly, entitlement arose prior to the January 2014 date of claim. The prior rating decision was final, and the proper effective date is January 16, 2014. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Increased Rating- Hemorrhoids First, remand is required for a current VA examination. Although the mere passage of time is not grounds for a new examination, a new examination is appropriate when there is an assertion of an increase in severity since the last examination. 38 C.F.R. § 3.159; Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity. Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). The Veteran received a September 2014 VA examination. The VA examiner noted mild to moderate hemorrhoids with occasional bleeding. During the September 2021 Board hearing, the Veteran described her rectal bleeding as severe and painful. There is no evidence of anemia, but remand is required for a new VA examination to determine if there is evidence of fissures. Accordingly, remand is required for a current VA examination. 2. Increased Rating- Bilateral Hearing loss Second, remand is required for a current hearing loss examination. The Veteran received a December 2014 VA examination. An October 2016 VA treatment record showed lower speech discrimination scores and worsening acuity in both ears. However, the October 2016 VA treatment did not use the Maryland CNC test. An examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. See 38 C.F.R. § 4.85. Accordingly, remand is required for a current VA examination. 3. Service Connection- Allergies Third remand is required for an allergy VA examination. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes providing a medical examination when is necessary to decide on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an allergy examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, an October 2008 VA treatment record noted a history of allergic rhinitis and assessed hay fever. A September 1976 service treatment record (STR) assessed upper respiratory infection and allergy. During the September 2021 Board hearing, the Veteran explained her allergies began during service and have continued since that time. The Veteran noted she has been taking over the counter medication for her allergies. Because there is evidence of currently diagnosed disabilities, an in-service event, and an indication that the current disabilities may be associated with the in-service event, remand for a VA examination is required. 4. Bilateral Knees Lastly, remand is remand is required for an adequate opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran received a December 2014 VA examination. The examiner opined the bilateral knee disorder was less likely than not related to the in-service injury. The examiner stated the Veteran had one complaint of bilateral shin splints during service. The examiner stated there were no other visits or complaints since that visit for complaints or treatment of knees or shin splints. However, a November 2014 VA treatment record diagnosed right knee sprain with a foreign body in the right knee. The foreign body was removed, and a biopsy diagnosed acute inflammatory synovial type cyst with fibroblastic type reaction. The December 2014 VA opinion is based on an inaccurate factual premise. A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Additionally, the examiner does not address the Veteran's statements regarding continued knee pain since service. Accordingly, remand is required for an addendum opinion. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from June 2018 to Present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected hemorrhoids. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected bilateral hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 4. Schedule the Veteran for a VA examination for her allergies. The examiner must review the claims file. The examiner is asked to provide a response to the following: Are the allergies at least as likely as not related to service, including upper respiratory infection and allergies diagnosed during service. Provide a rationale to support the opinion(s). 5. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's right knee disorder is at least as likely as not related to bilateral shin splints during service. The examiner must address the Veteran's statements regarding continued knee pain since service. 6. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's left knee disorder is at least as likely as not related to bilateral shin splints during service. The examiner must address the Veteran's statements regarding continued knee pain since service. Provide a rationale to support the opinion(s). David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bruton, C 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.