Case A26029654

KRISTI L. GUNN · 2026 · Case ID: A26029654

MIXED

Summary

The Veteran served on active duty from July 2001 to March 2008. The Veteran appealed the denial of service connection for several conditions, including migraines, hip instability and pain, foot pain, and tinnitus. The Board dismissed the claims for migraines and hip conditions, noting that these benefits had been granted by the agency of original jurisdiction (AOJ) after the appeal was filed, rendering those issues moot. Service connection for tinnitus was granted, with the Board applying the benefit of the doubt. The Veteran, a Master at Arms, reported experiencing ringing in her ears during service, consistent with hazardous noise exposure. Despite some negative VA medical opinions, the Board found the Veteran's testimony credible and the evidence in approximate balance, thus granting service connection for tinnitus. The claims for chronic left and right foot pain were denied. The Board found that the Veteran's preexisting bilateral hallux valgus, noted at enlistment, did not worsen during service, and post-service treatment records did not reflect a chronic condition until many years later. The Board remanded claims for bilateral ankle pain and instability, bilateral elbow pain, bilateral carpal tunnel syndrome, and benign paroxysmal positional vertigo (BPPV). The remand was based on inadequate VA medical opinions that failed to address the Veteran's contentions regarding the onset and continuity of symptoms, and did not consider all relevant factors. The BPPV claim was remanded for consideration as secondary to the granted tinnitus claim.

Service Branch

NAVY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

250822-578433

Full Decision Text

Citation Nr: A26029654
Decision Date: 04/01/26 Archive Date: 04/01/26

DOCKET NO. 250822-578433
DATE: April 1, 2026

ORDER

Entitlement to service connection for migraines is dismissed.

Entitlement to service connection for left hip instability is dismissed.

Entitlement to service connection for left hip pain is dismissed.

Entitlement to service connection for right hip instability is dismissed.

Entitlement to service connection for right hip pain is dismissed.

Entitlement to service connection for tinnitus is granted.

Entitlement to service connection for chronic left foot pain is denied.

Entitlement to service connection for chronic right foot pain is denied.

REMANDED

Entitlement to service connection for left ankle pain is remanded.

Entitlement to service connection for left ankle instability is remanded.

Entitlement to service connection for right ankle pain is remanded.

Entitlement to service connection for right ankle instability is remanded.

Entitlement to service connection for left elbow pain is remanded.

Entitlement to service connection for right elbow pain is remanded.

Entitlement to service connection for left carpal tunnel syndrome is remanded.

Entitlement to service connection for right carpal tunnel syndrome is remanded.

Entitlement to service connection for benign paroxysmal positional vertigo (BPPV) is remanded.

FINDINGS OF FACT

1. The Veteran was awarded service connection for migraines by way of a February 2026 rating decision.

2. The Veteran was awarded service connection for left hip instability by way of a February 2026 rating decision.

3. The Veteran was awarded service connection for left hip pain by way of a February 2026 rating decision.

4. The Veteran was awarded service connection for right hip instability by way of a February 2026 rating decision.

5. The Veteran was awarded service connection for right hip pain by way of a February 2026 rating decision.

6. Resolving reasonable doubt in the Veteran's favor, her tinnitus is at least as likely as not related to hazardous noise exposure in service.

7. A bunionectomy for bilateral hallux valgus was noted at service entry in May 2001 and the evidence persuasively weighs against finding that this preexisting condition was aggravated during service.

CONCLUSIONS OF LAW

1. The criteria for dismissal of the claim of entitlement to service connection for migraines have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

2. The criteria for dismissal of the claim of entitlement to service connection for left hip instability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

3. The criteria for dismissal of the claim of entitlement to service connection for left hip pain have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

4. The criteria for dismissal of the claim of entitlement to service connection for right hip instability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

5. The criteria for dismissal of the claim of entitlement to service connection for right hip pain have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

6. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

7. The criteria for entitlement to service connection for chronic left foot pain have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309.

8. The criteria for entitlement to service connection for chronic right foot pain have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 2001 to March 2008.

The rating decisions on appeal were issued in December 2024 (BPPV) and June 2025 (
3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 2001 to March 2008.

The rating decisions on appeal were issued in December 2024 (BPPV) and June 2025 (remaining claims) and constitute initial decisions; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

Regarding BPPV, the Veteran elected the Direct Review docket when submitting an August 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). Therefore, the Board may only consider the evidence of record at the time of the December 2024 agency of original jurisdiction (AOJ) decision on appeal. 38?C.F.R. § 20.301.

Regarding the remaining claims, the Veteran initially requested Higher-Level Review of a September 2024 rating decision when submitting an October 2024 VA Form 20-0996, Decision Review Request: Higher-Level Review. The Higher-Level Reviewer determined that there had been a duty to assist error and transferred the claims to the Supplemental Claim decision review option for additional development. The claims were denied in the June 2025 rating decision.

The claims were then appealed to the Board in the August 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). As the Veteran chose the Direct Review docket, the Board may only consider the evidence of record at the time of the June 2025 AOJ supplemental claim decision on appeal. 38?C.F.R. § 20.301.

If evidence was submitted after the AOJ issued the decisions on appeal, 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 claim[s], 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 claims of entitlement to service connection for bilateral ankle pain and instability, bilateral elbow pain, bilateral carpal tunnel syndrome, and BPPV, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

As a final note, the Board acknowledges that the Veteran specifically identified the February 2025 rating decision in his VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). However, the February 2025 rating decision identified duty to assist errors and is not a rating decision that can be appealed. As such, in interpreting the Veteran's election in the most favorable light, the Board has construed the Veteran's appeal to have been made in reference to the June 2025 supplemental rating decision which denied his service connection claims on the merits. See Terry v. McDonough, 37 Vet. App. 1 (2023).

1. Entitlement to service connection for migraines is dismissed.

2. Entitlement to service connection for left hip instability is dismissed.

3. Entitlement to service connection for left hip pain is dismissed.

4. Entitlement to service connection for right hip instability is dismissed.

5. Entitlement to service connection for right hip pain is dismissed.

The Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

Here, subsequent to her submission of the August 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), a February 2026 rating decision awarded the Veteran service connection for migraines, left hip instability, left hip pain, right hip instability, and right hip pain, effective April 19, 2024
.

4. Entitlement to service connection for right hip instability is dismissed.

5. Entitlement to service connection for right hip pain is dismissed.

The Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

The AOJ's awards of service connection are full grants of the benefits sought on appeal; therefore, there is no longer a case or controversy for the Board to adjudicate. Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The Board no longer has jurisdiction to review the appeals, as they have been rendered moot. 38 U.S.C. § 7105; 38 C.F.R. § 20.104. Accordingly, the appeals are dismissed.

6. Entitlement to service connection for tinnitus is granted.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R.

§ 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury, and; (3) a causal relationship between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§1101, 1112, 1113, 1137; 38 C.F.R. §§3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Tinnitus is an organic disease of the nervous system, which is an enumerated condition under

38 C.F.R. §3.309(a).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). It follows that when the evidence persuasively favors one side or the other, the benefit-of-the-doubt rule is not applied. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Tinnitus is "a noise in the ear, such as ringing, buzzing, roaring, or clicking." See Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994). Often, tinnitus is subjective in nature. As a lay person, the Veteran is competent to testify to observable symptoms. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, as a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability); Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, even a layman such as the Veteran is considered competent to report the observable manifestations of this condition.

Turning to the evidence, in a June 2024 VA examination, the Veteran reported that she began to notice a ringing in her ears while serving aboard the navy ship. She described a high-pitch single tone or a mosquito-like noise that lasted two to three minutes.

The Veteran's military occupational specialty (MOS) was Master at Arms, which carries with it a moderate probability of exposure to hazardous noise. She participated in weapons training and was the recipient of the Expert Rifle Ribbon and Expert Pistol Ribbon. The Veteran indicated that in service, she was exposed to sirens, alarms, needle gunning, chipping, sanding, grinding, boiler room noise, Tomahawks, and firearms. Prior to
this condition.

As there is evidence that the Veteran experienced acoustic trauma in service and she has continued to assert that she experienced ringing in her ears that began and continued since service, the Board affords the Veteran the benefit of the doubt. While there are negative VA medical opinions of record, the Board finds there is no reason to find this evidence more persuasive than the Veteran's competent and credible statements regarding the onset and continuity of her tinnitus.

The Board finds that the evidence for and against the claim is in approximate balance. Therefore, the benefit of the doubt must be resolved in favor of the Veteran, and entitlement to tinnitus is warranted. 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

7. Entitlement to service connection for chronic left foot pain is denied.

8. Entitlement to service connection for chronic right foot pain is denied.

Veterans are considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders "noted" at entrance into active service. 38 U.S.C. § 1111. Thus, veterans are presumed to have entered service in sound condition as to their health. Only such conditions as are recorded in examination reports are considered as "noted." 38 C.F.R.

§ 3.304(b).

Where conditions are "noted" at entrance into service, the presumption of soundness does not apply. 38 U.S.C. § 1111; 38 C.F.R. § 3.303, 3.306. Rather, the veteran may be granted service connection if his or her preexisting disability was aggravated by active service.

A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; see also Wagner v. Principi, 370 F.3d. 1089 (Fed. Cir. 2004).

Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. However, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306.

Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered in-service aggravation unless the underlying condition, as contrasted with the symptoms, has worsened. Jensen v. Brown, 4 Vet. App. 304 (1993); Green v. Derwinski, 1 Vet. App. 320 (1991); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Thus, "a lasting worsening of the condition"- that is, a worsening that existed not only at the time of separation but one that continues to currently exist is required. Routen v. Brown, 10 Vet. App. 183 (1997); Verdon v. Brown, 8 Vet. App. 529 (1996).

Following a review of the record, the Board finds that the evidence persuasively weighs against finding that the Veteran's preexisting bilateral hallux valgus worsened during service or immediately following her discharge from service.

Here, the Veteran has a current disability confirmed by a March 2025 VA examination. She reported pain along the tops and sides of her feet. A VA examiner noted bilateral mild to moderate symptoms due to hallux valgus. Review of the Veteran's service treatment records show that a May 2001 Report of Medical Examination and Report of Medical History upon enlistment documented surgical scars on the feet from a bunionectomy at age 11 to 12 years old. The Veteran had full range of motion of the toes, feet, and ankles and there was no tenderness. She denied impaired use of the feet. No sequalae were noted.

As the Veteran's bilateral bunionectomy for hallux valgus was noted upon her entrance into service, the presumption of soundness does not apply and aggravation of her foot condition is not conceded. The Veteran's remaining service treatment records do not show complaints, treatment, or diagnosis of any foot-related issues. Further, post-service treatment records do not reflect a chronic condition or treatment for hallux valgus until many years after service.

Accordingly, the Board finds that the Veteran's current chronic bilateral foot pain from hallux valgus is not an aggravation of her preexisting bilateral hallux valgus with subsequent bunionectomy that was noted on her entrance into service. Therefore, the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance, and the claims must be denied. 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

REASONS FOR REMAND

1. Entitlement to service connection for left ankle pain is remanded.

2. Entitlement to service connection for left ankle instability is remanded.

3. Entitlement to service connection for right ankle pain is remanded.

4. Entitlement to service connection for right ankle instability is remanded.

5. Entitlement to service connection for left elbow pain is remanded.

6. Entitlement to service connection for right elbow pain is remanded.

7. Entitlement to service connection for left carpal tunnel syndrome is remanded.

8. Entitlement to service connection for right carpal tunnel syndrome is remanded.

The Veteran is seeking to establish service connection for left ankle pain and instability, right ankle pain and instability, left elbow pain, right elbow pain, left carpal tunnel syndrome and right carpal tunnel syndrome. The Veteran asserted that her ankle conditions were caused by constant physical training, heavy lifting, and high impact activities in service. She indicated that constant computer work and high impact activities caused episodes of pain in both elbows. She also noted chronic episodes of pain, numbing, and burning in her wrists and hands. The Veteran contends her claimed conditions onset in service.

In connection with her claims, the Veteran was afforded VA examinations for the wrists, elbows, ankles, and feet in March 2025. Regarding the elbows and right ankle, the VA examiner noted that medical records and lay testimony were reviewed, but there was no indication of a chronic condition noted during the Veteran's active duty period. Therefore, the examiner was unable to establish a nexus because there was no chronicity. Regarding the left ankle, the examiner noted that November 2002 service treatment records reflected the Veteran's complaints of popping, unsure if it was her ankle or above. She was ultimately diagnosed with a knee injury. In February 2010, the Veteran had complaints of left ankle joint pain after standing for four to five hours. The examiner determined there was no indication of a chronic left ankle condition during her active duty period and therefore, she was unable to establish a nexus because there was no chronicity.

Regarding bilateral carpal tunnel syndrome, the examiner opined that the condition was less likely than not caused by the Veteran's toxic exposure risk activities (TERA) after considering the total potential exposure through all applicable military deployments. The examiner explained that carpal tunnel syndrome occurred when the median nerve was compressed as it traversed the carpal tunnel. The primary factor contributing to the onset was the elevated pressure within the carpal tunnel. The condition was not related to a specific exposure event.

When VA provides a veteran with an examination in a service connection claim, the examination and etiology opinion must be adequate. Barr
ankle condition during her active duty period and therefore, she was unable to establish a nexus because there was no chronicity.

When VA provides a veteran with an examination in a service connection claim, the examination and etiology opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the examiner relied solely on the absence of evidence in treatment records when opining that the Veteran's bilateral elbow and ankle conditions were related to service. She limited the opinion addressing carpal tunnel syndrome to whether the condition was related to a TERA. The examiner failed to consider the Veteran's contentions that her claimed conditions were related to physical training, heavy lifting, computer work, and high impact activities in service.

Reliance by the AOJ on inadequate VA medical opinions is a pre-decisional duty to assist error, warranting remand for addendum opinions.

9. Entitlement to service connection for BPPV is remanded.

Given the award of service connection for tinnitus herein granted, the matter of service connection for BPPV secondary to tinnitus has been raised for consideration. Under the AMA, the Board is precluded from requesting any specific development of the matter but to otherwise ensure due process to the Veteran, the matter will be remanded to the RO for initial consideration.

The matters are REMANDED for the following action:

1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's left ankle pain and instability and right ankle pain and instability. The claims file and a copy of this remand must be made available to the examiner. The need for an examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should respond to the following:

a) Is the Veteran's left ankle pain as least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) etiologically related to service? Please explain why or why not.

b) Is the Veteran's left ankle instability as least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) etiologically related to service? Please explain why or why not.

c) Is the Veteran's right ankle pain as least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) etiologically related to service? Please explain why or why not.

d) Is the Veteran's right ankle instability as least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) etiologically related to service? Please explain why or why not.

In forming his or her opinion, the examiner should address the Veteran's contentions regarding the onset and continuity of her bilateral ankle pain and instability.

The examiner is advised that a negative opinion cannot be based solely on the absence of treatment in service.

In providing the requested opinion, consider the Veteran's description of the in-service injury and symptoms as well as post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of the current disability, this should be noted. Stated another way, do the Veteran's reports about the symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible?

A rationale must be provided in support of any opinion(s).

2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's bilateral elbow pain. The claims file and a copy of this remand must be made available to the examiner. The need for an examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should respond to the following:

a) Is the Veteran's left elbow pain as least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) etiologically related to service? Please explain why or why not.

b) Is the Veteran's right elbow pain as least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) etiologically related to service? Please explain why or why not.

In forming his or her opinion, the examiner should address the Veteran's contentions regarding the onset and continuity of her bilateral
. The need for an examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should respond to the following:

In forming his or her opinion, the examiner should address the Veteran's contentions regarding the onset and continuity of her bilateral elbow pain.

The examiner is advised that a negative opinion cannot be based solely on the absence of treatment in service.

A rationale must be provided in support of any opinion(s).

3. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's bilateral carpal tunnel syndrome. The claims file and a copy of this remand must be made available to the examiner. The need for an examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should respond to the following:

a) Is the Veteran's left carpal tunnel syndrome as least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) etiologically related to service? Please explain why or why not.

b) Is the Veteran's right carpal tunnel syndrome as least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) etiologically related to service? Please explain why or why not.

In forming his or her opinion, the examiner should address the Veteran's contentions regarding the onset and continuity of her bilateral carpal tunnel syndrome.

The examiner is advised that a negative opinion cannot be based solely on the absence of treatment in service.

A rationale must be provided in support of any opinion(s).

4. Develop the Veteran's claim for entitlement to BPPV as secondary to her service-connected tinnitus.

KRISTI L. GUNN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Silverblatt, L.

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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