Entitlement to an effective date prior to October 10, 2017 for the grant of service connection for bone loss of skull, scarring/disfigurement of left ear, dizziness, left ear otitis externa, and otitis media,…

Citation Nr: A26069904 Decision Date: 07/30/26 Archive Date: 07/30/26 DOCKET NO. 210706-170159 DATE: July 30, 2026 REMANDED Entitlement to an effective date prior to October 10, 2017 for the grant of service connection for bone loss of skull, scarring/disfigurement of left ear, dizziness, left ear otitis externa, and otitis media, mastoiditis, and cholesteatoma is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1985 to October 1989. A February 2019 rating decision granted service connection for bone loss of skull; scarring/disfigurement of left ear; dizziness; left ear otitis externa; and otitis media, mastoiditis, and cholesteatoma, and assigned an effective date of October 10, 2017 for each claim. In February 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the February 2019 rating decision. The agency of original jurisdiction (AOJ) issued the HLR decision on appeal in July 2020, which considered the evidence of record at the time of the February 2019 rating decision and denied the Veteran's claim for an effective date prior to October 10, 2017 as to each claim. The Veteran appealed that decision by filing a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) in July 2021. He elected the Hearing docket. The Board notes that in his July 2021 VA Form 10182, the Veteran characterized his effective date claim pertaining to dizziness as "dizziness with headaches." The record contains a March 2023 rating decision after the decision on appeal which addressed the issue of the effective date for service connection for headaches. As such, the Board finds the issue of an effective date for service connection for headaches is not before the Board in the instant appeal. A Board hearing was held on February 26, 2025. A transcript of the hearing is included in the claims file. As a result of the Veteran's docket election, the Board may only consider the evidence of record at the time of the February 2019 rating decision, which was subsequently subject to higher-level review, as well as any evidence submitted by the Veteran, or his representative, at the hearing or within 90 days following the hearing (i.e., May 27, 2025). 38 C.F.R. § 20.302 (a). Evidence of record specifically identified by the Veteran, or his representative, at his February 26, 2025 hearing is likewise considered "submitted" during the evidence submission window. See Cash v. Collins, 166 F.4th 1046 (Fed. Cir. 2026). If evidence was submitted either (1) during the period after the AOJ issued the February 2019 rating decision, which was subsequently subject to higher-level review, or (2) more than 90 days following the date of the scheduled hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302 (c), 20.801. However, because the Board is remanding the appeal, any evidence the Board could not consider will be considered by the AOJ in the adjudication of the claims. 38 C.F.R. § 3.103 (c) (2) (ii). As a final preliminary matter, the Board observes that subsequent to the rating decision on appeal, the AOJ issued an April 2021 rating decision which reconsidered the Veteran's initial claim seeking service connection for left ear hearing loss due to ruptured eardrum dated September 12, 2001, and granted an effective date of September 12, 2001, for service connection for left ear hearing loss, citing 38 C.F.R. § 3.156. The AOJ further explained that while a claim of tinnitus was not addressed in the September 12, 2001 rating decision, the initial claim can be sympathetically read as a claim for tinnitus. At issue here, is the effective date assigned for the Veteran's bone loss of skull; scarring/disfigurement of left ear; dizziness; left ear otitis externa; and otitis media, mastoiditis, and cholesteatoma. Under the AMA, the Board must remand a claim to correct an error by the AOJ to satisfy its duty to assist the claimant under 38 U.S.C. § 5103A, if the error occurred prior to the AOJ decision on appeal. 38 U.S.C. § 5103A (f) (2) (A); 38 C.F.R. § 20.802 (a). The Board may also remand a claim to correct any other AOJ error "in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating" the claim. For reasons that follow, the Board finds that remand is required to address a pre-decisional duty to assist error in the development of the above claims. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an initial claim or supplemental claim 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. As to the date of claim in this appeal, the Board notes that the grant of service connection for bone loss of skull; scarring/disfigurement of left ear; dizziness; left ear otitis externa; and otitis media, mastoiditis, and cholesteatoma was based on the receipt of relevant and outstanding service treatment records. See February 2019 rating decision; see also service treatment records associated with the record in September 2018. These records were not associated with the claims file when VA first decided the left ear claim and are thereby "new". See November 2002 rating decision; see also; 38 C.F.R. § 3.156 (c). These service treatment records were also relevant as they documented in-service complaints and treatment for ruptured left eardrum 38 C.F.R. § 3.156 (c). 38 C.F.R. § 3.156 (c) provides for reconsideration of the prior claim to essentially place the claimant in the same position they would have been if the service treatment records had been considered in the earlier claim. 38 C.F.R. § 3.155 (d) (2) provides that regarding the scope of the claim, once VA receives a complete claim, VA will adjudicate as part of the claim entitlement to any ancillary benefits that arise as a result of the adjudication. The AOJ granted the claims for service connection for bone loss of skull; scarring/disfigurement of left ear; dizziness; left ear otitis externa; and otitis media, mastoiditis, and cholesteatoma, as stemming from the initial in-service ruptured left eardrum. See February 2019 decision on appeal. Given the AOJ determined in the April 2021 rating decision that the date of claim for the left ear claim is September 12, 2001, the date of claim for the above issues is September 12, 2001. 38 C.F.R. § 3.156 (c). The second step of 38 C.F.R. § 3.156 (c) involves the question of whether an earlier effective date is warranted. The question then becomes when the Veteran's disabilities first manifested, ie., when entitlement arose. The Board finds that the record before the AOJ prior to the February 2019 rating decision is unclear as to when entitlement arose given the conflicting evidence. For example, in his December 2003 notice of disagreement, the Veteran reported removal of a tumor that had grown in his ear canal behind his eardrum, which would indicate the presence of a tumor at that time. However, in his September 2018 statement, the Veteran indicated that he underwent four surgeries for cholesteatoma, the first of which was in 2001, a second was in 2007-2008, and that "a few years later," he had to have his left ear drum completely removed. This would indicate that the bone loss of the skull and left ear disfigurement manifested after 2001. Then, during his January 2019 VA examination, the examiner indicated the Veteran underwent surgery canal wall down procedure "12/2001." The cholesteatoma was noted to have been diagnosed in 2000. Notably, during the January 2019 VA examination, the examiner made comments that suggested her review of private treatment records. However, for unknown reasons these records were not associated with the claims file. In light of the above, and as the record contains conflicting information as to when entitlement of these claims arose, the Board finds the AOJ's failure to obtain the private records reviewed during the January 2019 VA examination report was a pre-decisional duty to assist error. 38 C.F.R. § 20.802 (a). ? The matters are REMANDED for the following action: With the assistance of the Veteran, attempt to obtain relevant private treatment records identified in the January 2019 VA examination report. The AOJ should specify that it is looking to obtain private treatment records and reports since 2000. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, Associate 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.