MIGRAINE

THOMAS H. O'SHAY · 2026 · Case ID: A26030381

MIXED

Summary

The Veteran served from October 1982 to July 1986. The Veteran appeals the denial of service connection for several conditions, including headaches, left ankle, left knee, left hip, back, and cervical spine disorders, as well as tremors of the upper extremities, anxiety, depression, and memory loss. The Veteran also sought service connection for chronic obstructive pulmonary disease (COPD), sleep apnea, bilateral hearing loss, and tinnitus. The Board found that the evidence was in relative equipoise for COPD, sleep apnea, bilateral hearing loss, and tinnitus, granting service connection for these conditions. For the remaining conditions, the Board denied service connection, finding that they did not manifest during service, were not related to service, and were diagnosed many years after service. The Board noted that the Veteran's military occupational specialty had a high probability for hazardous noise exposure, which supported the grants for hearing loss and tinnitus. The AOJ had previously made favorable findings for back disability, hearing loss, headaches, left ankle disability, left knee disability, sleep apnea, and tinnitus, and the Board was bound by these findings. The Board denied the remaining claims due to lack of service connection.

Rationale

Did not manifest during service; Not related to service; Diagnosed many years after service

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210511-158475

Full Decision Text

Citation Nr: A26030381
Decision Date: 04/02/26 Archive Date: 04/02/26

DOCKET NO. 210511-158475
DATE: April 2, 2026

ORDER

Entitlement to service connection for headaches is denied.

Entitlement to service connection for a left ankle disorder is denied.

Entitlement to service connection for a left knee disorder is denied.

Entitlement to service connection for a left hip disorder is denied.

Entitlement to service connection for a back disorder is denied.

Entitlement to service connection for a cervical spine disorder is denied.

Entitlement to service connection for tremors of the right upper extremity is denied.

Entitlement to service connection for tremors of the left upper extremity is denied.

Entitlement to service connection for an anxiety disorder is denied.

Entitlement to service connection for depression is denied.

Entitlement to service connection for memory loss is denied.

Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is granted.

Entitlement to service connection for sleep apnea is granted.

Entitlement to service connection for bilateral hearing loss is granted.

Entitlement to service connection for tinnitus is granted.

FINDINGS OF FACT

1. Headaches did not manifest during service, are not related to service, and were diagnosed many years after service.

2. A left ankle disorder did not manifest during service, is not related to service, and was diagnosed many years after service.

3. A left knee disorder did not manifest during service, is not related to service, and was diagnosed many years after service.

4. A left hip disorder did not manifest during service, is not related to service, and was diagnosed many years after service.

5. A back disorder did not manifest during service, is not related to service, and was diagnosed many years after service.

6. A cervical spine disorder did not manifest during service, is not related to service, and was diagnosed many years after service.

7. Tremors of the right upper extremity did not manifest during service, are not related to service, and were diagnosed many years after service.

8. Tremors of the left upper extremity did not manifest during service, are not related to service, and were diagnosed many years after service.

9. An anxiety disorder did not manifest during service and is not related to service

10. Depression did not manifest during service and is not related to service.

11. Memory loss did not manifest during service and is not related to service.

12. The evidence is at least in relative equipoise as to whether COPD is related to service.

13. The evidence is at least in relative equipoise as to whether sleep apnea is related to service.

14. The evidence is in relative equipoise as to whether the Veteran's bilateral hearing loss is causally or etiologically related to in-service noise exposure.

15. The evidence is in relative equipoise as to whether the Veteran's tinnitus is causally or etiologically related to service.

CONCLUSIONS OF LAW

1. Headaches were not incurred in service and are not presumed to have been incurred in service. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

2. A left ankle disorder was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

3. A left knee disorder was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

4. A left hip disorder was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

5. A back disorder was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

6. A cervical spine disorder was
A left hip disorder was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

5. A back disorder was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

6. A cervical spine disorder was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

7. Tremors of the right upper extremity were not incurred in service and are not presumed to have been incurred in service. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

8. Tremors of the left upper extremity were not incurred in service and are not presumed to have been incurred in service. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

9. The criteria for service connection for an anxiety disorder have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

10. The criteria for service connection for depression have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

11. The criteria for service connection for memory loss have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

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

13. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

14. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 5017; 38 C.F.R. §§ 3.102, 3.303, 3.385.

15. The criteria for service connection for 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 service from October 1982 to July 1986.

The appeal arises from rating decisions dated in December 2020; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the subsequent May 2021 notice of disagreement, the Veteran selected the Hearing review lane, and a Board hearing was held in March 2025. As such, the Board will consider evidence at the time of the December 2020 rating decisions and evidence received within 90 days of the Board hearing in March 2025. The Board will not consider evidence added to the record between the December 2020 rating decisions and the March 2025 Board hearing, nor the evidence added following the expiration of 90 days from the Board hearing. If evidence was added to the record during an ineligible period identified above, the Board has not considered that evidence. If the Veteran wishes to have VA consider any evidence that was not considered, a supplemental claim should be submitted identifying such evidence.

In the rating decisions dated in December 2020, the Agency of Original Jurisdiction (AOJ) made the following favorable findings: service treatment records show breathing pain diagnosed as pneumonia in February 1983. The AOJ determined that new and relevant evidence was received and the Veteran's claims of
will not consider evidence added to the record between the December 2020 rating decisions and the March 2025 Board hearing, nor the evidence added following the expiration of 90 days from the Board hearing. If evidence was added to the record during an ineligible period identified above, the Board has not considered that evidence. If the Veteran wishes to have VA consider any evidence that was not considered, a supplemental claim should be submitted identifying such evidence.

In the rating decisions dated in December 2020, the Agency of Original Jurisdiction (AOJ) made the following favorable findings: service treatment records show breathing pain diagnosed as pneumonia in February 1983. The AOJ determined that new and relevant evidence was received and the Veteran's claims of service connection for back disability, hearing loss, headaches, left ankle disability, left knee disability, sleep apnea, and tinnitus were being reconsidered. Additionally, the AOJ determined that the Veteran's military occupational specialty had a high probability for hazardous noise exposure; on VA examination in May 2010 the Veteran was diagnosed with degenerative joint disease of the left knee; in February 2010 private treatment records show a diagnosis of obstructive sleep apnea; and on VA examination in May 2010 the Veteran was diagnosed with tinnitus. The Board is bound by these favorable findings. 38 C.F.R. § 3.104(c).

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d).

For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for diseases such as sensorineural hearing loss, other organic diseases of the nervous system, and arthritis, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a).

For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the disorder noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Service connection may also be granted on a secondary basis for a disability which was caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310.

To grant service connection under any theory of entitlement, there must be a current disability. Degmetich v. Brown, 104 F.3d 1328, 1332 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Absent a diagnosis, a symptom significant enough to result in functional impairment in earning capacity qualifies as a disability. Saunders v. Wilkie, 886 F.3d 1356, 1367-1368 (Fed. Cir. 2018) (concerning the symptom of pain). A disability is current if present near or at the time a claim is filed or at any time during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

Issues 1-11: Entitlement to service connection for: headaches, left ankle disability, left knee disability, left hip disability, back disability, cervical spine disability, tremors of the right upper extremity, tremors of the left upper extremity, anxiety disorder, depression, and memory loss.

In a February 2010 statement the Veteran contended that he fell in Germany during service in 1983. He was calibrating howitzers and went outside the gun to check the third gunner's quadrant on the front of the turret. He was assured that they were not going to fire the howitzer, however by mistake the gun was fired. The percussion blew him off the front of the gun and he landed very awkwardly, hurting his back, left ankle, and left knee, causing severe headaches. The Veteran reported that he did not go to the doctor because he did not want to get anyone into trouble. During the March 2025 Board hearing the Veteran also testified that he injured his neck and left hip during his fall in service and contended that his headaches were due to toxic exposures during service and from falling off the howitzer. During the hearing the Veteran's spouse also testified that he did not have headaches prior to service. She stated that he has been diagnosed with depression and anxiety and had memory loss. The Veteran indicated that his variously diagnosed psychiatric disorder was secondary to the other disabilities discussed during the hearing and his essential tremors may be due to his toxic exposures during service, to include diesel fumes and gunpowder fumes.

In the December 2020 claim, the Veteran contended that his anxiety, depression, and memory loss were secondary to his service-connected disabilities.

Service treatment records show that on the separation examination in July 1986 the Veteran reported left knee pain for 3 to 4 months, the examiner noted that it was aggravated by running but the Veteran was able to do physical training and was not on profile. Service treatment records do not show complaints, findings or treatment for the other disabilities being denied herein.

The Veteran's DD 214 Form shows his military occupational specialty was self-propelled field artillery turret mechanic.

In a January 2010 statement received from the Veteran in June 2025, his brother and fellow serviceman stated that he served with the Veteran and they both were stationed in Germany at the same time but in different locations. He noted that in the winter of 1983 the Veteran visited him, and he noticed that he was favoring his left side and back. He asked him what was wrong and he said that he was blown off a howitzer during a fire mission. The Veteran refused to see doctors because he did not want to get his fellow soldiers in trouble. The Veteran visited him a couple of more times over the next year in 1984. His left knee, ankle, and back were still bothering him, but he seemed to be doing better.

In a January 2010 lay statement, received from the Veteran in June 2025, his father explained that the Veteran told him that he was blown off a big gun during service injuring his back and leg when he landed 20-36 feet from the gun.

In a December 2020 statement from the Veteran's pastor of 21 years, received from the Veteran in June 2025, the pastor explained that he knew of a howitzer incident that dramatically affected the Veteran, causing significant anxiety.

In a November 2020 statement from a fellow serviceman, received from the Veteran in June 2025, it was noted that they served together in Germany from 1983 to 1984. He remembered the time when one of the guns was called out while the Veteran was working on the front of the gun and they still fired it with him at the base of the tube. The fellow serviceman was at the maintenance truck when the Veteran came back to the truck with a severe headache.

In a December 2009 statement, received from the Veteran in June 2025, the Veteran's wife stated that she was engaged to the Veteran when he was in service and stationed in Germany. She stated that she remembered the day when he called and said he was blown off a gun. The Veteran told her he had pain in his back, left shoulder, and left knee. He also had headaches.

In a December 2020 statement received from the Veteran in June 2025, the Veteran's minister stated that he has known the Veteran for 20 years and the Veteran confided that he struggled with depression.

In a May 2025 statement, received from the Veteran in June 2025, the Veteran's former supervisor stated
December 2009 statement, received from the Veteran in June 2025, the Veteran's wife stated that she was engaged to the Veteran when he was in service and stationed in Germany. She stated that she remembered the day when he called and said he was blown off a gun. The Veteran told her he had pain in his back, left shoulder, and left knee. He also had headaches.

In a May 2025 statement, received from the Veteran in June 2025, the Veteran's former supervisor stated that the Veteran was fired due to memory loss.

The Board notes that copies of most of the above statements were also received prior to the December 2020 rating decisions on appeal.

After service, private medical records in January 1991 show chondromalacia patella of the knees. In August 1991 private medical records show that the Veteran complained of bilateral knee pain on and off since high school and denied any acute trauma or injuries to the knees. The examiner opined that most of the Veteran's knee symptoms were related to anterior knee pain as the Veteran was involved in quite a lot of kneeling, bending, and squatting at work.

A February 2025 private MRI of the cervical spine received from the Veteran in June 2025, shows left facet arthropathy and foraminal stenosis, and canal stenosis.

On VA examination in May 2010, the examiner noted that the Veteran reported injuring his left knee, ankle and low back due to a military accident in 1983 after he was blown off a howitzer gun and fell backwards. The diagnosis was left knee degenerative joint disease. After examining the Veteran and reviewing the record the examiner opined that it was less likely than not that the Veteran's left knee disability was due to service, finding that it is significant that service treatment records do not show the Veteran injured his left knee during service and on the July 1986 separation examination it was noted that there was no profile and the Veteran was able to do physical training. The Board finds this opinion to be significantly probative as it was based on medical principles and applied to the facts of the case. Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008).

In a June 2025 private opinion received from the Veteran in June 2025, the Veteran's private doctor stated that she reviewed the Veteran's medical history including his service treatment records. She noted that she discussed with the Veteran the events in service including the incident in which a howitzer that he was working on in 1983 was mistakenly fired, and that accident threw the Veteran off the howitzer. The examiner opined that it was highly likely that this event resulted in multiple injuries including and resulting in debilitating pain, weakness, cervical radiculopathy, lumbar radiculopathy, bilateral osteoarthritis, and chondromalacia patella of both knees. The examiner also stated that this accident also highly likely resulted in the left hip being replaced in May 27, 2015, via total hip replacement, degenerative disease of the left hip, and avascular necrosis of the hip of idiopathic origin. The examiner also opined that it was more likely than not that the tremors in the hands may be neurological in nature and resulted from damage to the nerves from the degeneration in the spine.

The examiner further opined that the Veteran had daily headaches, which were multifactorial and highly likely due to his cervical spine degeneration, chronic pain, depression and high-risk medication.

Lastly, the examiner opined that the Veteran was undergoing treatment for an acquired psychiatric disorder to include major depression with anxiety, chronic fatigue, memory loss, and insomnia. He also had night terrors that were being treated with medication but discontinued due to severe side effects. The examiner opined that it was highly like that the Veteran suffered from non-combat related posttraumatic stress disorder (PTSD) since service. The examiner stated that there were no other risk factors that could have precipitated the Veteran's current disorders.

To the extent that the June 2025 private opinion shows that the Veteran has a left ankle disability, left hip disability, back disability, cervical spine disability, and variously diagnosed psychiatric disorders related to service, it was based on the Veteran's medical history as reported by the Veteran. A bare transcription of lay history, unenhanced by additional comment by the transcriber, is not competent medical evidence merely because the transcriber is a health care professional. LeShore v. Brown, 8 Vet
like that the Veteran suffered from non-combat related posttraumatic stress disorder (PTSD) since service. The examiner stated that there were no other risk factors that could have precipitated the Veteran's current disorders.

To the extent that the June 2025 private opinion shows that the Veteran has a left ankle disability, left hip disability, back disability, cervical spine disability, and variously diagnosed psychiatric disorders related to service, it was based on the Veteran's medical history as reported by the Veteran. A bare transcription of lay history, unenhanced by additional comment by the transcriber, is not competent medical evidence merely because the transcriber is a health care professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Therefore, this opinion is of limited probative value regarding the Veteran's claimed cervical spine disability, back disability, left hip disability, left ankle disability, and variously diagnosed psychiatric disorders to include whether the Veteran even met the criteria for diagnosis of PTSD per the DSM-5.

As a lay person, the Veteran is competent to report symptoms pertaining to a disorder, which is within the realm of one's personal knowledge and personal knowledge which comes through the use of senses. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). To the extent that the Veteran is contending that he had continuous symptoms since service, the Board finds that the Veteran is not a credible historian. As discussed above, private treatment records in August 1991 show that the Veteran denied any acute trauma or injuries to the knees. Furthermore, during the Board hearing it was noted that the Veteran had memory problems. As such his statements regarding continuous symptoms or continuity of symptomatology since service are not considered credible. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (in determining whether evidence submitted by a Veteran is credible, the Board may consider internal consistency, facial plausibility, and consistency with other information submitted on behalf of the claimant).

Further, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, the diagnosis and etiology of the claimed left ankle disability; left knee disability; left hip disability; back disability; cervical spine disability; headaches, tremors of the upper extremities, and variously diagnosed psychiatric disorders to include anxiety disorder, depression, and memory loss, fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). Moreover, these are not the type of disorders that are readily amenable to mere lay diagnoses or probative comment regarding their etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran, his spouse, father, brother, minister, pastor, and friends have not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that they or the Veteran received any special training or acquired any medical expertise in evaluating such disorders. Thus, the lay evidence does not constitute competent medical evidence and lacks probative value.

On August 10, 2022, the President signed into law The Sergeant First Class Health Robinson Honoring our Promise to Address Comprehensive Toxics Act (PACT Act). Section 303 of this law provides that, if a Veteran submits a claim for service connection with evidence of disability and evidence of participation in toxic exposure risk activities (TERA), then VA shall obtain a medical opinion as to whether it is at least as likely as not that there is a nexus between the disability and the TERA. 38U.S.C. §1168. As discussed above, the Veteran contends that his left ankle disability, left knee disability, left hip disability, back disability, and cervical spine disability, were due to physical trauma as he reported falling off a howitzer, thus subsection (a) of 38 U.S.C. § 1168 does not apply. See VBA Letter 20-24-06, Exception to TERA Examination and Medical Opinion Requirement at pages 12-14 (June 12, 2024). Similarly, mental disorders are also among the exceptions to TERA Examination and Medical Opinion Requirement.

Further, the June 2025 private opinion submitted by the Veteran shows that his headaches were secondary to his cervical spine degeneration and depression, and tremors in
discussed above, the Veteran contends that his left ankle disability, left knee disability, left hip disability, back disability, and cervical spine disability, were due to physical trauma as he reported falling off a howitzer, thus subsection (a) of 38 U.S.C. § 1168 does not apply. See VBA Letter 20-24-06, Exception to TERA Examination and Medical Opinion Requirement at pages 12-14 (June 12, 2024). Similarly, mental disorders are also among the exceptions to TERA Examination and Medical Opinion Requirement.

Further, the June 2025 private opinion submitted by the Veteran shows that his headaches were secondary to his cervical spine degeneration and depression, and tremors in the upper extremities also were from degeneration in the spine, and not from his claimed TERA activities, and thus the matter of obtaining a TERA opinion is moot. Service connection on a secondary basis need not be addressed as the Veteran is not service connected for disabilities of the cervical and lumbar spine and an acquired psychiatric disorder. The Board also notes that the file does not include a memorandum finding that the Veteran had TERA activities during service.

The Board acknowledges that opinions regarding the etiology of the headaches, left ankle disability, left hip disability, back disability, cervical spine disability, tremors of the right upper extremity, tremors of the left upper extremity, anxiety disorder, depression, and memory loss are not of record. The probative evidence does not establish an in-service incurrence and continuous symptoms since service. Therefore, it is insufficient to trigger VA's duty to assist by providing a medical opinion regarding service connection. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).

Thus, for the above reasons the evidence is persuasively against the claims, the benefit-of-the-doubt doctrine is not for application, and the claims of service connection for headaches, left ankle disability, left knee disability, left hip disability, back disability, cervical spine disability, tremors of the right upper extremity, tremors of the left upper extremity, anxiety disorder, depression, and memory loss must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Issues 12-13: Entitlement to service connection for COPD and sleep apnea.

The Veteran during the March 2025 Board hearing testified that his respiratory disorders to include COPD and sleep apnea were due to service. A January 2010 statement from the Veteran's father, received from the Veteran in June 2025, shows that the Veteran started snoring since service.

Service treatment records in February 1983, March 1983, and October 1985 show that the Veteran was treated for pneumonia. As discussed above, the Veteran's DD 214 Form shows his military occupational specialty was self-propelled field artillery turret mechanic.

Medical records in October 2008 show obstructive sleep apnea. A December 2014 sleep study received from the Veteran in June 2025 shows obstructive sleep apnea.

There are unfavorable and favorable opinions of record. On VA examination in May 2010, the Veteran reported snoring since service. As for the other respiratory disorder, the examiner opined that the Veteran's pneumonia was treated and resolved with no disability as documented in his discharge physical. The examiner stated that medical literature does not support obstructive sleep apnea can be caused by remote and resolved mycoplasmal pneumonia.

As for the favorable opinion, in a June 2025 private opinion received from the Veteran in June 2025, the examiner, a specialist in pulmonary and sleep disorders, who has been treating the Veteran since 2014, stated he was diagnosed with obstructive pulmonary disease and obstructive sleep apnea. The examiner examined the Veteran and reviewed his medical records in addition to reviewing the circumstances and events of his military service where he was a self-propelled field artillery turret mechanic during service from 1982 to 1986. The examiner noted that in this field of work the Veteran was exposed to toxins such as asbestos, metalworking fluids, trichloroethane, carbon monoxide, ammonia, hydrogen chloride, diesel fumes, and lead exposure. Further, the Veteran had pneumonia during service and often experienced difficulties with wheezing and shortness of breath. The examiner noted that studies have shown that exposure to such elements can be detrimental to lung function. Thus, the examiner opined that it was highly likely that the Veteran's lengthy exposure to these particular elements had a negative impact on
to reviewing the circumstances and events of his military service where he was a self-propelled field artillery turret mechanic during service from 1982 to 1986. The examiner noted that in this field of work the Veteran was exposed to toxins such as asbestos, metalworking fluids, trichloroethane, carbon monoxide, ammonia, hydrogen chloride, diesel fumes, and lead exposure. Further, the Veteran had pneumonia during service and often experienced difficulties with wheezing and shortness of breath. The examiner noted that studies have shown that exposure to such elements can be detrimental to lung function. Thus, the examiner opined that it was highly likely that the Veteran's lengthy exposure to these particular elements had a negative impact on his lung function resulting in COPD. The examiner stated that there were no other known risk factors that may have precipitated the Veteran's current disorders. Thus, the overall context of this opinion shows that the examiner opined that it was more likely than not that the Veteran's COPD and obstructive sleep apnea were related to service. 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).

Neither opinion is any more or less persuasive than the other. Thus, the evidence is in relative equipoise, and thereby resolving all doubt in the Veteran's favor, service connection is warranted for COPD and sleep apnea. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Issues 14-15: Entitlement to service connection for bilateral hearing loss and tinnitus.

Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; where the auditory thresholds for at least three of these frequencies are 26 decibels or greater or when the Maryland CNC speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Tinnitus may only be observed by the Veteran and cannot be objectively tested for by an examiner. See generally Charles v. Principi, 16 Vet. App. 370 (2002).

The Veteran contends that he has bilateral hearing loss and tinnitus since his exposure to acoustic trauma during service based on his military occupational specialty as a self-propelled field artillery turret mechanic. See March 2025 Board hearing transcript. The Veteran testified that ringing in his ears began when he was calibrating howitzers and by mistake the gun was fired. Additionally, as noted above the AOJ made the favorable finding that the Veteran's military occupational specialty had a high probability for hazardous noise exposure.

On VA audiological examination in May 2010, the Veteran did not meet the regulatory criteria pursuant to 38 C.F.R. § 3.385. The diagnosis was bilateral sensorineural hearing loss. The examiner opined that tinnitus was as likely as not a symptom associated with hearing loss. The examiner opined that the Veteran's bilateral hearing loss was less likely than not due to service as he had normal hearing during service including on the separation exam and an Institute of Medicine 2005 study on Military and Noise Exposure found that there was no scientific evidence to support delayed onset of noise induced hearing loss. The examiner also opined that tinnitus was less likely than not due to service as the Veteran did not report it in the service treatment records.

In a June 2025 private opinion, received from the Veteran in June 2025, the examiner provided a diagnosis of sensorineural hearing loss. The examiner opined that both the bilateral hearing loss and tinnitus were more likely than not due to the Veteran's noise exposure in service. An accompanying audiogram dated in May 2025 indicates over 40 decibels in both ears
hearing during service including on the separation exam and an Institute of Medicine 2005 study on Military and Noise Exposure found that there was no scientific evidence to support delayed onset of noise induced hearing loss. The examiner also opined that tinnitus was less likely than not due to service as the Veteran did not report it in the service treatment records.

Thus, in viewing the evidence in the light most favorable to the Veteran, the Board finds that the totality of the evidence in the instant case is at least in relative equipoise, the benefit-of-the-doubt rule applies, and entitlement to service connection for bilateral hearing loss and tinnitus is granted. 38 U.S.C. § 5107(b).

Thomas H. O'Shay

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Mac, M.

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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