TINNITUS

Summary

The Veteran, who served and received an honorable discharge, appeals a July 2020 rating decision. The appeal concerns service connection for tinnitus, lumbar spine strain, diabetes mellitus, right knee pain, and a cervical spine condition. The Board granted service connection for tinnitus, finding the Veteran's credible statements supported by documented complaints during and shortly after service, placing the evidence in approximate balance and warranting the benefit of the doubt. Service connection for lumbar spine strain was also granted, as the Board is bound by a favorable finding of service connection for degenerative disc disease made by the agency of original jurisdiction (AOJ) in April 2021, which addressed the Veteran's lumbar spine claims. The Board remanded the claims for diabetes mellitus, right knee pain, and cervical spine condition. The diabetes mellitus claim was remanded for a VA examination to determine the nexus to toxic exposure risk activities (TERA) during the Veteran's service in Iraq, as required by the PACT Act. The right knee pain claim was remanded due to an inadequate VA examination; the examiner failed to discuss all in-service treatments and subsequent medical records, including a "trick knee" notation and worsening pain documented post-service. The cervical spine claim was remanded for a VA examination to address the nexus between the current cervical spine condition, evidenced by a November 2019 MRI and in-service complaints, and the Veteran's military service, as the existing independent medical opinion was insufficient.

Rationale

Credible statements regarding current tinnitus; Documented complaints during and shortly after discharge; Evidence in approximate balance, benefit of doubt applied

Full Decision Text

Citation Nr: A26031192
Decision Date: 04/06/26	Archive Date: 04/06/26

DOCKET NO. 200813-104049
DATE: April 6, 2026

ORDER

Service connection for tinnitus is granted.

Service connection for lumbar spine strain is granted.

REMANDED

The issue of entitlement to service connection for Diabetes Mellitus is remanded.

The issue of entitlement to service connection for right knee pain is remanded.

The issue of entitlement to service connection for a cervical spine condition is remanded.

FINDINGS OF FACT

1. The Veteran's tinnitus had its onset during active-duty service.

2. In April 2021, the agency of original jurisdiction granted service connection for degenerative disc disease (claimed as lumbar spine strain, thoracic spine osteoarthritis, and other spinal issues), effective January 2020. 

CONCLUSIONS OF LAW

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

2. The criteria for establishing service connection for lumbar spine strain have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.104(c), 3.303. 

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty and received an honorable discharge. 

This matter is before the Board of Veterans' Appeals (Board) following his appeal of a July 2020 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).   

In the August 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. 

In April 2024, the Veteran withdrew that request. See Notification Letter, received April 2024. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative within 90 days following receipt of the withdrawal. See 38 C.F.R. §?20.302(a). The Board cannot consider (1) evidence submitted during the period after the AOJ issued the decision on appeal and before the date of receipt of the withdrawal, or (2) evidence submitted more than 90 days following receipt of the withdrawal.

If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision. 38 C.F.R. § 20.300. Regarding the issues the Board is remanding, any such evidence will be considered by the agency of original jurisdiction (AOJ) on remand. Regarding the issue the Board is deciding, if the Veteran would like VA to consider any evidence that was added to the claims file 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, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a supplemental claim are included with this decision.

In the July 2020 rating decision, the AOJ found that the evidence submitted regarding the reopened claims for tinnitus, cervical spine injury, and diabetes mellitus was not new and relevant. However, the AOJ proceeded to address the substance of those claims on the merits. Under the AMA, the AOJ's implicit finding of new and relevant evidence to reach the merits of the claim is a favorable finding by which the Board is bound. 38?C.F.R. §?3.104(c). Therefore, the issue of whether new and relevant evidence was received will not be revisited.

1. Service connection for tinnitus

The Veteran contends that his tinnitus should be service connected because it began in service and has continued since that time. See Appellate Brief, received February 2026. He asserts that his exposure to hazardous noise from heavy equipment, tactical vehicles, generators, small arms fire, and military aircraft while he was on deployment caused his current tinnitus, which has become worse over time. See Form VA 21-4138, received January 2026. 

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2)
 because it began in service and has continued since that time. See Appellate Brief, received February 2026. He asserts that his exposure to hazardous noise from heavy equipment, tactical vehicles, generators, small arms fire, and military aircraft while he was on deployment caused his current tinnitus, which has become worse over time. See Form VA 21-4138, received January 2026. 

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

After careful consideration of the evidence, any reasonable doubt remaining is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. If the evidence is not in approximate balance or nearly equal, the claim is to be denied. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

The Board notes that the Veteran complained of ringing in the ears during a post-deployment medical screening in March 2004, and that a retention medical examination completed in February 2004 listed "chronic tinnitus - bil X 1 year" as one of the Veteran's current conditions. See STR - Medical, received December 2014. Moreover, an audiology note from March 2005, within 1 year of discharge, documents the Veteran's report of tinnitus. 

VA has established certain rules and presumptions for chronic diseases, such as arthritis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a).

The Board notes that tinnitus is a chronic disease (other organic diseases of the nervous system) under 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258 (2015). This Veteran's credible statements regarding his current tinnitus are supported by his documented complaints of tinnitus during and shortly after discharge from active duty. Consequently, the evidence is at least approximately balanced as to whether his current tinnitus is related to his in-service exposure to harmful noise. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary is required to give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. As a result, service connection for tinnitus is warranted, and the claim is granted. 

The Board notes that a rating decision was issued by the AOJ in March 2026, which granted service connection for tinnitus, effective July 2025. That rating is based on a supplemental claim received January 2026, and it is not affected by this decision. 

2. The issue of entitlement to service connection for a lumbar spine condition

The Veteran's claim for service connection for a lumbar spine strain was denied in April 2020. The Veteran filed a supplemental claim for that condition in May 2020, and the AOJ again denied service connection in July 2020. The Veteran appealed that denial to the Board in August 2020.  

However, the Veteran also filed a supplemental claim application (VA Form 20-0905)
 was issued by the AOJ in March 2026, which granted service connection for tinnitus, effective July 2025. That rating is based on a supplemental claim received January 2026, and it is not affected by this decision. 

2. The issue of entitlement to service connection for a lumbar spine condition

The Veteran's claim for service connection for a lumbar spine strain was denied in April 2020. The Veteran filed a supplemental claim for that condition in May 2020, and the AOJ again denied service connection in July 2020. The Veteran appealed that denial to the Board in August 2020.  

However, the Veteran also filed a supplemental claim application (VA Form 20-0905) in November 2020, and the AOJ took up the issue, granting service connection for degenerative disc disease (claimed as lumbar spine strain and thoracic spine osteoarthritis, as well as other spinal issues) as of January 2020. See Rating Decision - Narrative, April 2021. The AOJ based its grant on a VA examination conducted the same month, which found that "review of medical records indicates a long history of chronic back pain. Military strenuous physical activities causes wear and tear of the joints especially the back. Therefore, back condition was at least as likely as not  . . . caused by the claimed in-service injury, event, or illness." Id.  

Although the evidence forming the basis of that grant of service connection is outside the evidentiary window for this appeal, the Board is bound by the favorable finding under 38 C.F.R. § 3.104(c)-the grant of service connection. As a result, service connection for a lumbar spine condition (claimed as lumbar spine strain) is granted. 

REASONS FOR REMAND

1. The issue of entitlement to service connection for Diabetes Mellitus is remanded.

Remand of this claim is necessary to fulfill a statutory duty that has a reasonable possibility of aiding in substantiating the Veteran's claim. 38 C.F.R. § 20.802(a). Specifically, section 303 of the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT?Act) provides that if a covered veteran submits a claim for service connection with evidence of disability and evidence of participation in a toxic exposure risk activity, 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 toxic exposure risk activity.?38?U.S.C. §?1168. 

In this case, the AOJ conceded a current diagnosis of diabetes mellitus in the February 2020 rating decision. The Board is bound by that favorable finding under 38 C.F.R. § 3.104(c). Moreover, the Veteran in this case is a "covered veteran," as that term is defined in 38 U.S.C. § 1119. See Toxic Exposure Risk Activity (TERA) Memorandum, received January 2026; see also Form DD-214, received October 2004, noting military service in Iraq from June 2003 to July 2004. 

Additionally, the Veteran was screened for diabetes mellitus in July 2003, while he was on active duty, when his blood sugar had risen to 169. Furthermore, diabetes mellitus is included on a problem list from a medical history collected in July 2005, 11 months after the Veteran came off active duty. See STR - Medical, received December 2014. 

As the exception described in 38 U.S.C. § 1168(b) does not apply to diabetes mellitus in this instance, a medical opinion that meets the 38 U.S.C. § 1168(a) requirements is needed on remand. See VBA Letter 20-24-06, Updated Guidance on Processing Claims Involving Public Law 117-168, Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022, or the Honoring our PACT Act of 2022, 89 Fed. Reg. 51224 (June 17, 2024) (detailing the four situations in which VA currently finds no indication of an association between the claimed disability and a toxic exposure risk activity (TERA)).

2. The issue of entitlement to service connection for right knee pain is remanded.

The Board must remand an appeal to the AOJ for correction of an error on the part of the AOJ to satisfy its duties under 38 U.S.C. 5103A if the error occurred prior to the date of the AOJ decision on appeal. 38 C.F.R. § 20.802. This claim must be remanded for correction of the following pre-decisional duty
2, 89 Fed. Reg. 51224 (June 17, 2024) (detailing the four situations in which VA currently finds no indication of an association between the claimed disability and a toxic exposure risk activity (TERA)).

2. The issue of entitlement to service connection for right knee pain is remanded.

The Board must remand an appeal to the AOJ for correction of an error on the part of the AOJ to satisfy its duties under 38 U.S.C. 5103A if the error occurred prior to the date of the AOJ decision on appeal. 38 C.F.R. § 20.802. This claim must be remanded for correction of the following pre-decisional duty to assist error.

The AOJ did not provide an adequate medical examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination or opinion, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). 

In this case, the examination provided in July 2020 found no nexus between the Veteran's documented in-service treatment for a right knee injury and his current right knee condition. Specifically, the examiner stated that although an STR in April 1988 shows that the Veteran sought medical attention for right knee pain, "no further STR found show[ed] treatment for a chronic right knee condition. Medical records reviewed do show the Veteran developed arthritis in the right knee as document[ed] on an x-ray in 2007, but this was nearly two decades after the report of pain in the right knee in 1988." C&P Examination July 2020. 

The VA examiner also noted that "the finding of arthritis [to the] right knee came nearly 3 years after the Veteran's separation from active duty in 2004. There is no evidence of chronicity found in the medical records reviewed to connect the Veteran's current knee condition to his military service." Id. 

However, the VA examiner's finding that there were no other in-service treatments for the Veteran's right knee condition prior to 2007 is not accurate. A periodic health assessment in November 1993 noted a "trick knee" problem. See STR - Medical, received December 2014. Also, a discharge physical in July 2004 stated that the Veteran's knee problems were getting worse. See STR - Medical Photocopy, received January 2020. 

Furthermore, a retention medical examination in February 2005-six months after the Veteran's discharge from active duty-shows bilateral anterior knee pain "throughout deployment from walking on gravel." That retention examination also notes that "Occ[asionally] right knee joint feels like it is moving out. VAMC knee xray 3 months ago." Id. Additionally, notes from April and November 2005 show bilateral knee pain. Those notes were not discussed by the VA examiner in the July 2020 examination, so the examination is inadequate for the purpose of adjudication. A remand is necessary to allow the AOJ an opportunity to obtain an adequate examination. 

3. The issue of entitlement to service connection for cervical spine injury is remanded.

There was no VA examination for the claimed cervical spine condition. VA must obtain an examination when there is "(1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim." McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).

In this case there is a November 2019 MRI report showing mild multilevel changes to the cervical spine. Medical Treatment Record - Non-Government Facility, received December 2019. Consequently, there is competent evidence in the record of a current disability.

There is also evidence of an in-service injury; specifically, a complaint of back and neck pain from a sick-call visit in July of 2003. Medical Treatment Record - Non-Government Facility, received June 2011. Additionally, the Veteran listed back pain on a post-deployment examination in March 2004, five months prior to coming off of active duty. There is also a notation of a December 2001 back injury on an annual medical certification from February 2002. See STR - Medical, received December 2014. 

Furthermore, the Veteran's complaints of neck and back pain continued after service, as there is a
 received December 2019. Consequently, there is competent evidence in the record of a current disability.

There is also evidence of an in-service injury; specifically, a complaint of back and neck pain from a sick-call visit in July of 2003. Medical Treatment Record - Non-Government Facility, received June 2011. Additionally, the Veteran listed back pain on a post-deployment examination in March 2004, five months prior to coming off of active duty. There is also a notation of a December 2001 back injury on an annual medical certification from February 2002. See STR - Medical, received December 2014. 

Furthermore, the Veteran's complaints of neck and back pain continued after service, as there is a back injury included on a medical problem list from a medical consultation in July 2005, exactly one year after the Veteran's release from active duty. See STR - Medical, received December 2014. Therefore, there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability. 

The Veteran did submit an independent medical opinion that discussed a cervical spine injury incurred during service, but the independent examiner stopped short of finding that the claimed cervical spine condition was related to service. See Medical Treatment Record - Non-Government Facility, received November 2020. As such, the claim for a cervical spine condition cannot be granted on the basis of the independent medical opinion alone. 

Because there is competent evidence of a current disability affecting the cervical spine, as well as evidence establishing that a related back injury occurred during the Veteran's military service, but insufficient medical evidence addressing the nexus between the two, this appeal must be remanded to the AOJ for development of a medical opinion addressing that issue.  

The matters are REMANDED for the following actions:

1. Schedule the Veteran for a VA examination to determine the nature and etiology of his diabetes mellitus. After reviewing the claims file, performing a physical examination of the Veteran, and conducting any indicated tests, the examiner is asked to address the following:

Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's diabetes mellitus had its onset in and/or is otherwise related to service, including his TERA? Please explain why or why not, specifically considering a) the total potential exposure through all applicable military deployments of the veteran; and b) the synergistic, combined effect of all toxic exposure risk activities of the veteran.

2. Schedule the Veteran for a VA examination to determine the nature and etiology of his right knee condition. After reviewing the claims file, performing a physical examination of the Veteran, and conducting any indicated tests, the examiner is asked to address the following:

Please identify all current right knee disabilities. In doing so, please specifically discuss the diagnoses of record, including but not limited to right knee pain. For any diagnoses of record that cannot be validated or confirmed, please explain why that is so.

For each right knee disability identified, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the disability was incurred in or caused by an in-service injury, event, or illness? Please explain why or why not, specifically considering and discussing the Veteran's complaint of a "trick knee" problem in 1993, the Veteran's July 2004 discharge physical, and the notes from 2005 regarding bilateral knee pain.

3. Schedule the Veteran for a VA examination to determine the nature and etiology of his cervical spine condition. After reviewing the claims file, performing a physical examination of the Veteran, and conducting any indicated tests, the examiner is asked to address the following:

(a) Please identify all current disabilities of the cervical spine. In doing so, please specifically discuss the diagnoses of record, including but not limited to multilevel degenerative changes noted on the November 2019 MRI. For any diagnoses of record that cannot be validated or confirmed, please explain why that is so.

(b) For each cervical spine disability identified, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the disability was incurred in or caused by an in-service injury, event, or illness? Please explain why or why not, specifically considering and discussing the November 2019 MRI. 

Please include a complete rationale for the opinions provided. If you cannot provide the requested opinions without resorting to speculation, please expressly indicate this and state why it is so.

 

 

S. Merrick

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Musgrave, Stan 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