Case A26024577

JONATHAN HAGER · 2026 · Case ID: A26024577

GRANTED

Summary

The veteran, who served in the U.S. Army from May 1992 to April 1995, appeals a February 2021 rating decision. The veteran withdrew claims for migraine headaches and right ear hearing loss, which the Board dismissed. The Board granted service connection for a lumbar spine disability, described as degenerative arthritis with intervertebral disc syndrome (IVDS), and for tailbone pain residual to a coccyx fracture. The Board found the evidence evenly balanced for these claims, resolving reasonable doubt in the veteran's favor. The AOJ had favorably found a current lumbar spine disability and an in-service coccyx fracture. The veteran provided credible lay testimony about the in-service genesis and continuity of symptoms for both conditions, which was deemed sufficient despite negative VA medical opinions. The Board found the VA opinions inadequate for failing to consider the lay evidence and the possibility of pain alone constituting a disability. Service connection for tinnitus was also granted, with the evidence found evenly balanced regarding its in-service onset. The Board found the VA audiologist's negative opinion inadequate for decontextualizing the veteran's credible lay accounts of tinnitus and its in-service onset. Reasonable doubt was resolved in the veteran's favor for the tinnitus claim.

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210316-147287

Full Decision Text

Citation Nr: A26024577
Decision Date: 03/18/26 Archive Date: 03/18/26

DOCKET NO. 210316-147287
DATE: March 18, 2026

ORDER

Entitlement to an initial compensable rating for migraine headaches is dismissed.

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

Entitlement to service connection for a lumbar spine disability (diagnosed as degenerative arthritis of the spine with intervertebral disc syndrome (IVDS)), on a direct basis, is granted.

Entitlement to service connection for pain residual to tailbone (coccyx) fracture causing impairment in earning capacity, on a direct basis, is granted.

Entitlement to service connection for tinnitus, on a direct basis, is granted.

FINDINGS OF FACT

1. In a June 2024 letter, the Veteran, through her representative, prior to promulgation of decision in the appeal, withdrew her claim for entitlement to an initial compensable rating for migraine headaches.

2. In a June 2024 letter, the Veteran, through her representative, prior to promulgation of decision in the appeal, withdrew her claim for entitlement to service connection for right ear hearing loss.

3. The evidence is at least evenly balanced as to whether the Veteran's lumbar spine disability had onset in service.

4. The evidence is at least evenly balanced as to whether the Veteran has tailbone pain that is residual to an in-service coccyx fracture.

5. The evidence is at least evenly balanced as to whether the Veteran's tinnitus had onset in service.

CONCLUSIONS OF LAW

1. The criteria for withdrawal as to the issue of entitlement to an initial compensable rating for migraine headaches, in docket 210316-147287, have been met. 38 U.S.C. § 7105(d).

2. The criteria for withdrawal as to the issue of entitlement to service connection for right ear hearing loss, in docket 210316-147287, have been met. 38 U.S.C. § 7105(d).

3. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for the Veteran's lumbar spine disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

4. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for the Veteran's tailbone pain have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

5. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for bilateral tinnitus have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service in the United States Army from May 1992 to April 1995.

These matters come before the Board of Veterans' Appeals (Board) from an appeal of a February 2021 rating decision of the Department of Veterans Affairs (VA). In the rating special, identified as a mandated special review, the Agency of Original Jurisdiction (AOJ), among other dispositions, granted service connection for migraine headaches and denied service connection of the other claims above.

In her March 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran elected the Hearing docket.

As the Veteran has requested the Hearing Docket, the Board may consider only the evidence of record at the time of the AOJ decision on the issues on appeal and evidence submitted at the Board hearing and within 90 days following the hearing. 38 U.S.C. § 7113(b); 38 C.F.R. § 20.302.

The Veteran testified before the undersigned Veterans law Judge in June 2024. The Veteran's claims file contains a copy of the hearing transcript.

If evidence was added during the ineligible period, it has not been considered, and the Board discusses below evidence and a rating decision that occurred after the evidentiary window in this case.

If the Veteran wishes to have VA consider any of this evidence, she can at any time file a supplemental claim with the AOJ after receiving a decision and the additional evidence would be considered in connection with the supplemental claim. 38 U.S.C. §§ 5104C(a)(1)(B), (b); 5108; 38 C.F.R. §§ 3.2501, 20
testified before the undersigned Veterans law Judge in June 2024. The Veteran's claims file contains a copy of the hearing transcript.

If evidence was added during the ineligible period, it has not been considered, and the Board discusses below evidence and a rating decision that occurred after the evidentiary window in this case.

If the Veteran wishes to have VA consider any of this evidence, she can at any time file a supplemental claim with the AOJ after receiving a decision and the additional evidence would be considered in connection with the supplemental claim. 38 U.S.C. §§ 5104C(a)(1)(B), (b); 5108; 38 C.F.R. §§ 3.2501, 20.1105(a). If filed within one year, this supplemental claim would preserve the date of the claim as the effective date of the grant of the benefit or benefits sought. 38 U.S.C. § 5104C(a)(2)(B); 38 C.F.R. § 3.2500(h)(1).

Withdrawal of Claims

"The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees." 38 U.S.C. § 7105(d). An appeal may be withdrawn as to any or all issues involved in the appeal. 38 C.F.R. § 20.205. Withdrawal may be made by the Veteran or by her or his representative. Id.

In this case, the Veteran withdrew, through her representative, her claims for entitlement to an initial compensable rating for migraine headaches and her claim for entitlement to service connection for right ear hearing loss in a letter of June 2024 correspondence (memorializing withdrawal of these two matters at the June 2024 Board hearing). The letter identifies the Veteran's name and claims file. Moreover, the representative affixed his signature.

This constitutes a valid withdrawal of these two matters because the June 2024 letter complies with the requirement of the applicable regulation by including the name of the Veteran, his applicable VA file number, and a statement that the appeal of the two matters is withdrawn. See Hembree v. Wilkie, 33 Vet. App. 1, 8 (2020); 38 C.F.R. § 20.205. The Veteran's withdrawal of these two matters on appeal was effective upon VA's receipt of the June 2024 letter (coincidental with the withdrawal at the Board hearing_. Neither the Veteran nor the circumstances of the withdrawal reasonably raise a question about the withdrawal's validity. Martinez v. McDonough, 36 Vet. App. 320, 338 (2023) ("at no time does the Board have to be concerned with a veteran's understanding of the written withdrawal...instead, the Board should look to those situations that might invalidate a written election, such as mental incompetence, duress, or fraud"). As the Veteran has withdrawn the appeal as to the above 2 matters, there remains no specific determination as to these two matters in docket 210316-14787 with which the claimant disagrees.

Consequently, pursuant to the applicable statute, the Board will dismiss the appeal in docket 210316-14787 as to the two above matters. 38 U.S.C. § 7105(d).

Service Connection

Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F. 3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Lumbar spine disability and Pain Residual to Tailbone Fracture

In the February 2021 rating decision, the AOJ made a favorable finding as to a current lumbar spine disability. The Board is bound to this favorable finding as to a current disability. 38 U.S.C. § 5104(b)(4); 5104A; 38 C.F.R. § 20.801(a).

Lumbar spine disability and Pain Residual to Tailbone Fracture

Although the evidence of record does not include a current tailbone-related diagnosis, pain alone is sufficient in some circumstances to show the existence of a current disability ("pain"). See Saunders, 886 F. 3d at 1364-65) (a diagnosis is not required to meet the current disability requirement. and pain alone can constitute disability if it causes impairment in earning capacity). The Veteran's has provided competent and credible accounts and testimony that she experiences ongoing and functionally limiting tailbone pain that causes impairment in earning capacity. Consequently, the current disability requirement for these two disabilities has been met.

In lay accounts, accounts to VA clinicians, and in hearing testimony, the Veteran has reported that she fractured her tailbone in service and at the same time injured her back. Discernable lumbar and tailbone bone have been on-going ever since. In the case of the latter, the discernable pain worsened through the rendering of a compound diagnosis (degenerative arthritis of the spine with IVDS) and thereafter. In hearing testimony, the Veteran reported that she fractured her tailbone in service (as confirmed in her service treatment records), and at the time of medical intervention, clinicians focused on tailbone symptoms, without considering her concomitant lumbar spine pain. Significantly, the AOJ favorably found that the evidence shows that a qualifying injury occurred during service, specifically that there was treatment for a coccyx fracture during service.

According to the Veteran, the discernable symptoms of both disabilities had genesis in service in service and have persisted ever since. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007) (a veteran is competent to testify regarding observations, to include directly hearing or reading the reports of competent clinicians and epidemiologists); Buchanan v. Nicholson, 451 F. 3d 1331, 1337 (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). The Veteran's lay accounts are plausible, internally consistent, and consistent with the places, types, and circumstances of service, and there is nothing of equal or greater probative weight in the evidence of record to contradict this account of his discernable and ongoing symptoms culminating in the above noted diagnosis. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service records). Thus, the in-service injury or disease requirement and ongoing symptoms have been shown for both disabilities.

In October 2020, a VA clinician rendered negative etiological opinions as to both of these disabilities. As to the tailbone pain, the Veteran's reasoning wholly focused upon a conclusion that the Veteran's tailbone fracture was an acute occurrence which had fully resolved. The clinician did not consider the credible lay evidence within the calculus of the negative decision in any meaningful way. Moreover, the clinician did not consider that pain alone can constitute disability and that the question in this case is whether the current tailbone pain causing impairment in earning capacity is residual to the acknowledged coccyx fracture in service.

As to the lumbar spine disability, the clinician emphasized that the Veteran's account as to her discernable lumbar spine pain have been "non-specific." As a rationale to support the negative etiological opinion, the clinician indicated that the "objective evidence" fails to disclose that the lumbar spine disability "occurred during service years or within one year from separation". Dismissing the competent, plausible, and credible evidence as to in-service genesis and continuity of lumbar spine symptoms, the clinician indicated that such credible accounts are "subjective only".

For these reasons, the Board finds that both of these negative etiological opinions are inadequate. Buchanan, 451 F. 3d at 1336, n. 1 (the VA's clinician's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for
the "objective evidence" fails to disclose that the lumbar spine disability "occurred during service years or within one year from separation". Dismissing the competent, plausible, and credible evidence as to in-service genesis and continuity of lumbar spine symptoms, the clinician indicated that such credible accounts are "subjective only".

For these reasons, the Board finds that both of these negative etiological opinions are inadequate. Buchanan, 451 F. 3d at 1336, n. 1 (the VA's clinician's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record).

The Board could remand these service connection claims for additional opinions. However, considering the credible lay evidence, remanding now could well be construed as an improper attempt to obtain additional evidence for the sole purpose of denying this Veteran's service connection claims, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216, 225 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). To the extent that these grants of service connection is based primarily on credible lay evidence rather than complete medical opinions, "nothing in the regulatory or statutory provisions [relating to evidence to be considered] requires both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself." Buchanan, 451 F. 3d 1335.

For the above reasons, the evidence suffices to decide these service connection claims, as it is at least evenly balanced as to whether the Veteran's lumbar spine disability and tailbone pain had onset in service, the latter as residual to the coccyx fracture. As the reasonable doubt created by this relative equipoise in the evidence of record must be resolved in the Veteran's favor, entitlement service connection for these two disabilities is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Tinnitus

In addition to the service connection law discussed above, other provisions apply to tinnitus.

Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease, however remote, are service connected, unless clearly attributable to intercurrent causes. Entitlement to service connection based on chronicity pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Tinnitus is recognized as an organic disease of the nervous system and therefore a chronic disease. Fountain v. McDonald, 27 Vet. App. 258, 271-272 (2015) (including tinnitus within the category of organic diseases of the nervous system for which presumptive service connection is provided under 38 C.F.R. § 3.309(a)).

Tinnitus is a condition capable of lay observation and diagnosis. Charles v. Principi, 16 Vet. App. 370, 374 ("ringing in the ears is capable of lay observation"). Thus, the Veteran is competent to report his symptoms. Therefore, his assertions regarding in-service onset and continuing symptoms after are both competent and probative.

During an August 2019 VA audiological examination, the Veteran reported to the VA audiologist that she has intermittent bilateral tinnitus. Consequently, the current disability requirement for tinnitus has been met.

To the August 2019 VA audiologist, the Veteran reported that she first experienced tinnitus at the end of her active duty
. § 3.309(a)).

To the August 2019 VA audiologist, the Veteran reported that she first experienced tinnitus at the end of her active duty service. Ever since the initial occurrence in service, discernable tinnitus has occurred at least weekly and has last between two and three minutes. Jandreau, 492 F. 3d 1372, 1377; Buchanan v., 451 F. 3d 1331, 1337; 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Therefore, both the in-service disease of injury requirement and chronic symptoms have been shown.

The August 2019 VA audiologist rendered a negative etiological opinion. As to supporting reasoning, the audiologist reported that the Veteran's endorsement of tinnitus is not consistent with acoustic trauma. The audiologist parsed the Veteran's credible lay accounts to conclude that since tinnitus is a "precursor to the Veteran getting a headache, it is more likely than not related to migraine headaches". Notwithstanding the fact that the Veteran was later granted service connection for migraine headaches, the audiologist decontextualized the credible lay evidence as if tinnitus and headaches were ineluctably bound together. Indeed, this does not address whether the tinnitus had onset in service, which is precisely what the Veteran has conveyed in her credible lay accounts. Due to his decontextualization and flawed reasoning, the Board finds this negative etiological opinion inadequate. Buchanan, 451 F. 3d at 1336, n. 1.

For the above reasons, the evidence suffices to decide this service connection claim, as it is at least evenly balanced as to whether the Veteran's tinnitus had onset in service. As the reasonable doubt created by this relative equipoise in the evidence of record must be resolved in the Veteran's favor, entitlement service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Jonathan Hager

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board B.J. Komins, 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.

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