HEARING LOSS

DELYVONNE M. WHITEHEAD · 2026 · Case ID: 26000177

MIXED

Summary

The Veteran, who served from May 1968 to April 1970, including service in Vietnam, appeals the denial of service connection for a right knee disability and right ear hearing loss, while also seeking service connection for left ear hearing loss and a respiratory disorder. The Board granted service connection for left ear hearing loss and respiratory disorder. For left ear hearing loss, the Board found the Veteran's hearing loss related to service, citing competent and credible reports of acoustic trauma as a combat engineer and rifle marksman, along with documented noise trauma in December 1968. The Board found the VA examiner's unfavorable opinion inadequate due to improper reliance on lack of in-service evidence and failure to adequately explain why acoustic trauma was not considered, especially given the conceded in-service acoustic trauma. For the respiratory disorder, the Board found it related to service, noting a current pulmonary nodule diagnosis and the Veteran's credible reports of exposure to waste burning fumes, contaminated water, and conceded herbicide exposure. The Board found the VA examiner's unfavorable opinion inadequate due to conclusory statements without rationale. The claims for right knee disability and right ear hearing loss were remanded due to inadequate VA medical opinions that failed to consider lay statements and properly address the etiology, particularly regarding conceded acoustic trauma for the right ear. The Board noted the inadequacy of prior remand efforts and ordered new addendum opinions addressing specific directives.

Rationale

Competent and credible reports of acoustic trauma; Documented noise trauma in December 1968; Conceded in-service acoustic trauma; Inadequate unfavorable VA opinion

Special Benefit

NO SPECIAL BENEFIT

Docket No.

17-40 037

Full Decision Text

Citation Nr: 26000177
Decision Date: 01/07/26 Archive Date: 01/07/26

DOCKET NO. 17-40 037
DATE: January 7, 2026

ORDER

Entitlement to service connection for left ear hearing loss is granted.

Entitlement to service connection for respiratory disorder is granted.

REMANDED

Entitlement to service connection for a right knee disability is remanded.

Entitlement to service connection for right ear hearing loss is remanded.

FINDINGS OF FACT

1. Resolving all reasonable doubt in favor of the Veteran, his left ear hearing loss is etiologically related to his active duty service.

2. Resolving all reasonable doubt in favor of the Veteran, his respiratory disorder is etiologically related to his active duty service

CONCLUSION OF LAW

1. The criteria for entitlement to service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385.

2. The criteria for entitlement to service connection for respiratory disorder have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7101(a)(2).

The Veteran served on active duty from May 1968 to April 1970, to include service in the Republic of Vietnam.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).

In April 2021, the Board issued a decision that, in pertinent part, declined to reopen the claims for service connection for bilateral hearing loss and denied service connection for a right knee disorder and respiratory disorder. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In August 2022, the Court issued an Order that vacated the Board's April 2021 decision and remanded the matter on appeal for adjudication consistent with the instructions outlined in an August 2022 Joint Motion for Partial Remand (JMPR) by the parties.

In November 2022, the Board issued a decision that, in pertinent part, reopened the claim for service connection for bilateral hearing loss and remanded service connection for a right knee disorder, respiratory disorder, and bilateral hearing loss for additional development.

In October 2023, the Board remanded the Veteran's claims for additional development. Regrettably, the Board finds there was not substantial compliance with its October 2023 remand directives, as it pertains to right knee disability and right ear hearing loss. Stegall v. West, 11 Vet. App. 268, 271 (1998).

As an initial matter, the Board remanded the Veteran's claim in October 2023 to obtain an adequate VA medical opinion addressing the etiology of the claimed respiratory disorder. In June 2024, July 2024, and August 2024, VA provided medical opinions in response to the Board's remand, in which the AOJ was then to readjudicate the appeal and if any benefits remained denied, issue a Supplemental Statement of the Case (SSOC). In September 2024, a SSOC was issued, but it did not include the issue of service connection for a respiratory disorder, nor was the claim granted, and thus, a remand would essentially be required for the AOJ to issue a SSOC that considers relevant evidence uploaded to the record since the last SSOC issued in July 2023. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). However, as the Board has issued a full grant of benefits for service connection for respiratory disorder herein, the Board notes that this AOJ error is harmless.

Service Connection

Generally, to prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C
lincon v. West, 12 Vet. App. 238, 240-41 (1999). However, as the Board has issued a full grant of benefits for service connection for respiratory disorder herein, the Board notes that this AOJ error is harmless.

Service Connection

Certain "chronic diseases" may be presumed to have been incurred in service if they manifest to a compensable degree within one year of separation from service; however, if the evidence of the record is insufficient to establish a disease was chronic in service, and/or manifested within the specified time period, then there must be a continuity of disease symptoms shown after discharge in order to warrant service connection. 38 C.F.R. § 3.303(b). Hearing loss, organic diseases of the nervous system, are a "chronic disease" under 38 C.F.R. § 3.309(a).

1. Entitlement to service connection for left ear hearing loss.

The Veteran contends that he currently has bilateral hearing loss that had its onset during active duty service or is otherwise directly related to the acoustic trauma he experienced on active duty service.

After review of the record, the Board finds the Veteran's hearing loss is related to his active duty service.

The record includes findings that the Veteran has a current left ear hearing loss disability as defined in 38 C.F.R. § 3.385. Hearing loss for VA purposes was demonstrated at the April 2012, April 2023, and August 2024 VA examinations.

In addition, the Board notes the Veteran's competent and credible reports of exposure to acoustic trauma during active service, specifically, from being a combat engineer during service. Moreover, the Veteran's DD-214 notates he was a rifle marksman, as well as service treatment records documenting noise trauma in December 1968. Therefore, with no evidence to the contrary, and resolving any doubt in favor of the Veteran, the Board finds that in-service noise exposure (acoustic trauma) is conceded.

In July 2024, the Veteran was provided with a VA medical opinion in response to the Board's October 2023 remand. Upon review, the examiner opined that the Veteran's left ear hearing loss was at least as likely as not the result of military noise exposure, as his medical record noted a left ear threshold shift at 4k Hz in 1969 with ISO-1964 thresholds indicating acoustic trauma and later exams showing hearing loss consistent with the in-service noise exposure.

While the Board notes the Veteran was provided with additional medical opinions in July 2024 and August 2024 tending to weigh against the Veteran's claim, the Board notes that these medical opinions are inadequate, as they improperly rely on a lack of in-service medical evidence showing abnormal hearing levels and/or lack of contemporaneous medical evidence showing a left ear hearing condition as the basis for providing the unfavorable opinions. In addition, the examiners found no evidence of acoustic trauma during service, however, failed to adequately explain why, especially given the Veteran's assertion of exposure, his military occupation as a combat engineer with notably being a rifle marksman, and his documented noise trauma in December 1968. Furthermore, the Board, herein, has conceded to the Veteran's in-service acoustic trauma.

Therefore, based on the above, the probative evidence of record is in favor of the Veteran's claim, and without any adequate evidence to the contrary, and resolving all reasonable doubt in favor of the Veteran, the Board finds that entitlement to service connection for left ear hearing loss is warranted. The claim is granted.

2. Entitlement to service connection for respiratory disorder.

The Veteran contends that he currently has a respiratory disorder that is directly related to his active duty service, to include his assertion of in-service exposure to waste burning fumes, drinking contaminated water, and/or conceded exposure to herbicides.

After review of the record, the Board finds the Veteran's respiratory disorder is related to his active duty service.

The record includes findings the Veteran has a current diagnosis of pulmonary nodule, as shown in the October 2019 and May 2023 VA examinations.

In addition, the Board notes the Veteran's competent and credible reports of in-service exposure to waste burning fumes and drinking contaminated water, as well as the VA conceding to his in-service exposure to herbicides. Therefore, the Board finds that
disorder.

After review of the record, the Board finds the Veteran's respiratory disorder is related to his active duty service.

The record includes findings the Veteran has a current diagnosis of pulmonary nodule, as shown in the October 2019 and May 2023 VA examinations.

In July 2024, the Veteran was provided with a VA medical opinion in response to the Board's October 2023 remand. Upon review, the examiner opined that the Veteran's pulmonary nodules are at least as likely as not due to his in-service exposure to waste burning fumes and conceded exposure to herbicides, as cited medical literature documents that exposure to air irritants or pollutants can cause pulmonary nodules.

While the Board notes the Veteran was provided with additional medical opinions in June 2024 and August 2024 tending to weigh against the Veteran's claim, the Board notes that these medical opinions are inadequate, as the examiner provided conclusory statements with no supporting rationale.

Therefore, based on the above, the probative evidence of record is in favor of the Veteran's claim, and without any adequate evidence to the contrary, and resolving all reasonable doubt in favor of the Veteran, the Board finds that entitlement to service connection for respiratory disorder, diagnosed as pulmonary nodules, is warranted. The claim is granted.

REASONS FOR REMAND

1. Entitlement to service connection for a right knee disability is remanded.

As noted above, the Board remanded the Veteran's claim in October 2023 to obtain an adequate VA medical opinion addressing the etiology of the claimed right knee disability, to include discussion of the Veteran's lay statements regarding the onset and progression of the disability.

In June 2024, VA provided the Veteran two VA medical opinions, in response to the Board remand. However, upon review of each, the Board finds the opinions fail to adequately comply with its directives. Specifically, the examiner failed to consider and discuss the Veteran's lay statements regarding its onset and progression as instructed. In addition, the examiner improperly relied on the lack of in-service medical evidence, and the lack of contemporaneous medical evidence post- in-service injury, showing a right knee condition, as the sole basis for providing the unfavorable medical opinions. Therefore, the Board finds that an addendum VA medical opinion is needed that adequately addresses the Veteran's claimed condition, in compliance with Stegall.

As such, a remand is necessary.

2. Entitlement to service connection for right ear hearing loss is remanded.

As noted above, the Board remanded the Veteran's claim in October 2023 to obtain an adequate VA medical opinion addressing the etiology of the claimed right ear hearing loss, to include discussion of the Veteran's lay statements regarding the onset and progression of the disability.

In July 2024 and August 2024, VA provided the Veteran with several VA medical opinions, in response to the Board remand. However, upon review of each, the Board finds the opinions fail to adequately comply with its directives. Specifically, the examiner failed to consider and discuss the Veteran's lay statements regarding its onset and progression as instructed. In addition, the examiners improperly relied on the lack of in-service medical evidence showing abnormal hearing levels/hearing loss and/or lack of contemporaneous medical evidence showing a right ear hearing condition as the basis for providing the unfavorable opinions. Moreover, the examiners found no evidence of acoustic trauma during service, however, failed to adequately explain why, especially given the Veteran's assertion of exposure, his military occupation as a combat engineer with notably being a rifle marksman, and his documented noise trauma in December 1968. Furthermore, the Board, herein, has conceded to the Veteran's in-service acoustic trauma. Therefore, the Board finds that an addendum VA medical opinion is needed that adequately addresses the Veteran's claimed condition, in compliance with Stegall.

As such, a remand is necessary.

The matters are REMANDED for the following action:

1. Obtain and associate with the claims file any outstanding medical treatment records.

2. Provide the Veteran with addendum VA medical opinions to ascertain the current nature and etiology of his claimed right knee disability and right ear hearing loss by an examiner who has not previously provided an opinion in this matter. All necessary tests should be conducted, as deemed appropriate. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination.
conceded to the Veteran's in-service acoustic trauma. Therefore, the Board finds that an addendum VA medical opinion is needed that adequately addresses the Veteran's claimed condition, in compliance with Stegall.

As such, a remand is necessary.

The matters are REMANDED for the following action:

1. Obtain and associate with the claims file any outstanding medical treatment records.

2. Provide the Veteran with addendum VA medical opinions to ascertain the current nature and etiology of his claimed right knee disability and right ear hearing loss by an examiner who has not previously provided an opinion in this matter. All necessary tests should be conducted, as deemed appropriate. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. Following complete review of the record, the examiner must address the following:

(a) Opine whether the Veteran's right knee disability had its onset during any period of active duty service or is otherwise etiologically related to his active duty service, to include his in-service fall from working on an ice plant.

(b) Opine whether the Veteran's right ear hearing loss had its onset during any period of active duty service or is otherwise etiologically related to his active duty service, to include his documented noise trauma in December 1968.

In rendering this opinion, the examiner must accept the conceded in-service acoustic trauma. In addition, the examiner must specifically consider and discuss the enlistment and separation audiometric results after he/she has converted the audiometric results from ASA to ISO-ANSI standards (or, if the examiner determines that the ISO-ANSI standard was utilized and conversion is not necessary, provide an explanation for that finding).

(c) The examiner must consider and discuss the Veteran's lay statements regarding the onset and progression of the claimed disorders.

The rationale for all opinions must be provided.

The entire claims file, including a copy of this remand, must be made available to all examiners, who must note review of the record in the examination report. Any indicated tests or studies should be performed, and all relevant evidence should be discussed. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail.

DELYVONNE M. WHITEHEAD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Carter, Brittani

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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