TINNITUS

S. SCHICK · 2025 · Case ID: A25103303

MIXED

Summary

The Veteran, an Air Force Veteran who served from February 2003 to December 2006, appealed the denial of service connection for tinnitus and the remand of his claim for headaches. The Veteran failed to attend a scheduled VA examination for tinnitus without providing good cause, and no evidence of record supported a nexus between his claimed tinnitus and service. The Board noted the Veteran's military personnel records indicated a Dental Assistant AFSC, which has a low probability for hazardous noise exposure, and that service treatment records did not show any complaints, treatments, or diagnoses of tinnitus during service. The first mention of tinnitus was in a March 2024 claim, over 15 years after separation, and prior medical records from 2013 did not mention tinnitus. The Board found the evidence did not support service connection for tinnitus, denying the claim. The headaches claim was remanded due to a duty to assist error, as the Veteran was not scheduled for a specific examination for headaches, and the Board ordered a new VA examination to determine current disability and its relationship to service. The Board also noted that any evidence not considered due to the direct review docket limitations could be submitted via a Supplemental Claim.

Rationale

Failure to attend scheduled VA examination; No in-service complaints or treatment for tinnitus; Late filing of claim without continuity of symptomatology

Service Branch

AIR FORCE

Special Benefit

NO SPECIAL BENEFIT

Docket No.

250107-506386

Full Decision Text

Citation Nr: A25103303
Decision Date: 12/02/25 Archive Date: 12/02/25

DOCKET NO. 250107-506386
DATE: December 2, 2025

ORDER

Entitlement to service connection for tinnitus is denied.

REMANDED

Entitlement to service connection for headaches is remanded.

FINDING OF FACT

The Veteran does not have a tinnitus disability that is attributable to service.

CONCLUSION OF LAW

The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had honorable active service with the United States Air Force from February 2003 to December 2006.

In the February 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the July 2024 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review 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 claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

However, because the Board is remanding the headaches claim, any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii).

Service Connection

Generally, service connection will be granted for disability resulting from an injury or disease caused or aggravated by active military service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). A grant for service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the in-service event, injury, or disease. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In this case, the Board has reviewed all the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal.

Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr v. Nicholson, 21. Vet. App. 303 (2007).

Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. See 38 U.S.C. § 5107(b). If there is an approximate balance of positive and negative evidence regarding any issue material
.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr v. Nicholson, 21. Vet. App. 303 (2007).

Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. See 38 U.S.C. § 5107(b). If there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter then the benefit-of-the-doubt rule applies, but the benefit-of-the-doubt rule does not apply when the evidence persuasively favors one side or the other. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

1. Entitlement to service connection for tinnitus

Initially, the Board notes that the Veteran did not report for the VA examination scheduled for his tinnitus claim.

Under 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. In this case, examinations were necessary to establish entitlement to the benefits sought and to address the crucial question of etiology, or the nexus of the claimed tinnitus condition to the Veteran's service. Regarding whether good cause was shown for the Veteran's failure to attend the scheduled VA examinations, to date, neither the Veteran nor his representative has provided good cause for the no-shows.

The action to be taken in instances where a veteran fails to report for a VA examination depends on if the examination was scheduled in connection with a service connection/initial rating claim or a claim for an increase. A service connection claim or an initial rating claim is classified as an original compensation claim under 38 C.F.R. § 3.655(b), so where a veteran fails to report for such an examination, the case shall be rated on the evidence of record. Fenderson v. West, 12 Vet. App. 119, 125 (1999); Turk v. Peake, 21 Vet. App. 565, 568-70 (2008). On that point, the tinnitus issue on appeal is a service connection issue. In contrast, where a veteran fails to report for an examination scheduled in connection with a claim for an increase or any other original claim, the claim shall be denied. See 38 C.F.R. § 3.655(b) (this situation does not apply here). But, as a threshold matter, when a veteran misses a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the veteran lacked good cause to miss the scheduled examination. See 38 C.F.R. § 3.655 (a); Turk, 21 Vet. App. at 569. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. See 38 C.F.R. § 3.655(a).

As to the necessity of a VA tinnitus examination, the Board finds that the VA examination is necessary in order to establish service connection for tinnitus because, when considering all the medical and lay evidence currently of record, entitlement to service connection for tinnitus cannot be established without current, adequate VA examination demonstrating, respectively, a nexus. Thus, the Veteran's failure to report to the April 2024, VA tinnitus examination is fatal to his claim because the evidence currently of record fails to establish that a current tinnitus disability is related to service. A discussion of this evidence of record on the issue of entitlement to service connection for tinnitus will be addressed in greater detail below.

As to the issue of good cause for failure to appear to the April 2024 VA examination, neither the Veteran nor his representative have offered any explanation for his failure to appear.

In this regard, the Board is relying upon the presumption of administrative regularity in finding that the Veteran was properly notified of the scheduled July 2022 VA examinations. "There is a presumption of regularity under which it is presumed that government officials 'have properly discharged their official duties." Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992). The Court has applied the presumption of regularity to various processes and procedures throughout the VA administrative process, including the AOJ's mailing of notice of a VA medical examination. Jones v. West, 12 Vet. App.
to the April 2024 VA examination, neither the Veteran nor his representative have offered any explanation for his failure to appear.

The Board sees that prior to the scheduled April 2024 VA tinnitus examination, the claims file contains a March 2024, Exam Scheduling Request computer printout with the Veteran's most recent address of record and a March 2021 VA Examination Appointment Notification with the Veteran's most recent address of record. However, April 3, 2024, an Exam Scheduling Request Contention Cancellation documented that the Veteran was a "No Show" to the scheduled April 2024 VA tinnitus examination. No mail was returned as undeliverable.

The record does not reveal that the Veteran did not receive a copy of the letter notifying him of the date and time of his April 2024 VA tinnitus examination, nor has the Veteran or his representative asserted that his failure to report to the VA examination was due to a lack of notice from the VA. Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013) (reversing Kyhn v. Shinseki, 23 Vet. App. 335 (2010)). The Court has held that "the Board need not examine whether the presumption of regularity has been rebutted unless and until an appellant, at a minimum, alleges that he did not receive the document in question." Baxter v. Principi, 17 Vet. App. 407, 411 (2004).

In addition, there is no evidence of returned mail at his most recent address by the U.S. Postal Service. There is no evidence an incorrect or misspelled address was used. In fact, both prior to and after the scheduling of the April 2024 VA tinnitus health examination, the Veteran was sent various correspondence to the same home address without it being returned as undeliverable.

To date, neither the Veteran nor his representative have provided good cause for his failure to report nor has the Veteran or his representative asserted that the Veteran did not receive notice of the April 2024 VA examination or provide good cause for the missed examination.

Accordingly, absent any evidence to the contrary, the Board concludes that the Veteran was properly notified of his scheduled April 2024 VA examination.

The Board emphasizes that the duty to assist is not a one-way street; a claimant cannot remain passive when he or she has relevant information. Wamhoff v. Brown, 8 Vet. App. 517 (1996) (VA has duty to assist the veteran, not a duty to prove his claim while the veteran remains passive). In fact, in Martinez v. Wilkie, 31 Vet. App. 170, 178 (2019), the Court reaffirmed that the duty to assist was not a one-way street the Veteran must cooperate with the development and adjudication of his claim. In the present case, the Veteran has not cooperated to the extent he failed to appear to a recent VA tinnitus examination scheduled for this benefit, without good cause or explanation.

Therefore, in accordance with the applicable VA regulation, when a veteran does not appear for a scheduled examination in conjunction with an original claim for service connection or an initial rating claim, the claim will be rated on the evidence of record. See 38 C.F.R. § 3.655(b).

Turing to the evidence of record, the Veteran contends that he has tinnitus related to his active service. The Veteran filed an application for tinnitus in March 2024. The application stated that the tinnitus was directly related to service but did not assert when the conditions had its onset or report any symptoms. See VA 21-526EZ received March 2024.

The Board acknowledges that the July 2024 rating decision made the favorable finding that the evidence shows that a qualifying event, injury, or disease had its during your service, which was that the Veteran's military personnel records show an AFSC of Dental Assistant, which has a low probability for hazardous noise exposure. The Board is bound by this favorable finding. 38 C.F.R. § 3.104(c).

The question for the Board is whether the Veteran has a current
The Veteran filed an application for tinnitus in March 2024. The application stated that the tinnitus was directly related to service but did not assert when the conditions had its onset or report any symptoms. See VA 21-526EZ received March 2024.

The question for the Board is whether the Veteran has a current tinnitus disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.

Upon review of the evidence, the Board concludes that although the Veteran has reported tinnitus during the appeal period, the probative evidence of record does not support a finding that the Veteran has tinnitus that began during service or is otherwise related to an in-service injury, event, or disease.

While the July 2024 rating decision made the favorable finding that the evidence shows that a qualifying event, injury, or disease had its during your service, which was that the Veteran's military personnel records show an AFSC of Dental Assistant, which has a low probability for hazardous noise exposure; however, service treatment records (STRs) do not support the Veteran had complaints, treatments or diagnoses of tinnitus. While ear wax was noted in a December 2006 STR, his ears were noted as normal after the ear wax removal. Tinnitus, an organic disease of the nervous system, is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Instead, the first reports related to tinnitus was in the March 2024 VA Form 21-526EZ claim.

In addition, no medical professional has ever related the Veteran's complaints of tinnitus to his active-duty service. As noted above, the Veteran failed to report for his VA tinnitus examination that was scheduled for April 2024

Further, a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). In this case, the medical evidence does not show any complaints of tinnitus until the March 2024 claim, more than 15 years after his separation from service. Significantly, in January 2013, the Veteran had treatment for ADHD, anxiety, and depression. He was using medications. He denied tinnitus, discharge from ears, and vertigo. See CAPRI received June 2013. Available records do not contain treatment for tinnitus.

The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology; however, in this case, in March 2024, the Veteran filed claim for benefits, but did not mention any tinnitus symptoms. This suggests to the Board that there was no pertinent tinnitus symptomatology at that time. See Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded).

While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding another claim, it becomes reasonable to expect that he or she is presenting all issues for which he or she is experiencing symptoms that the veteran believes are related to service. The Veteran demonstrated that he understood the procedure for filing a claim for VA compensation, and he followed that procedure in other instances where he believed he was entitled to that benefit. In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted. Thus, the Veteran's inaction regarding a claim or mention of tinnitus or symptoms, when viewed in the context of his action of making other claims for compensation, may reasonably be interpreted as indicative of the lack of tinnitus symptomatology at the time he filed the 2024 claim.

Although the Veteran believes his tinnitus is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion regarding this issue
related to service. The Veteran demonstrated that he understood the procedure for filing a claim for VA compensation, and he followed that procedure in other instances where he believed he was entitled to that benefit. In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted. Thus, the Veteran's inaction regarding a claim or mention of tinnitus or symptoms, when viewed in the context of his action of making other claims for compensation, may reasonably be interpreted as indicative of the lack of tinnitus symptomatology at the time he filed the 2024 claim.

Although the Veteran believes his tinnitus is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex. Therefore, it is outside the competence of the Veteran in this case. Jandreau, 492 F.3d at 1372, 1377, 1377 n.4.

Accordingly, the Board concludes that the evidence does not support the claim for service connection, and the claim for service connection for tinnitus is denied.

REASONS FOR REMAND

1. Entitlement to service connection for headaches is remanded.

The Board finds that remand to correct a pre-decisional duty to assist error is needed for failure to provide the Veteran with an adequate VA examination for his claimed headaches condition. In this regard, the Veteran filed an application for headaches in March 2024. See VA 21-526EZ received March 2024. In July 2011, the Veteran went to the emergency room for cough, sinus congestion, ear pain, and mild sinus headaches. See CAPRI received June 2013. Then in March 2013 he had a runny nose, nasal congestion, bilateral ear pain, cough, headaches, and body aches. While it appears the Veteran was scheduled for a VA tinnitus examination, the record does not suggest that he was scheduled for a headaches examination and should be scheduled on remand.

The matter is REMANDED for the following action:

Schedule the Veteran for a VA headaches examination. The examiner must review the relevant documents in the claims file. The examiner should perform testing, if he or she feels that it is necessary. The examiner should respond to the following:

(a) Indicate whether the Veteran has a current headache disability.

(b) For any diagnosed headache disability, is it at least as likely as not that the headache disability is related to service?

The examiner must provide a complete rationale for all proffered opinions. If the requested opinions cannot be provided without resorting to speculation, the examiner should provide an explanation as to why speculation is required.

S. Schick

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Parnell, C. E.

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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