READJUDICATION FOR BACK DISABILITY

JOHN J. CROWLEY · 2026 · Case ID: A26032011

MIXED

Summary

The veteran, who served from January 1988 to September 1991, appeals the denial of service connection for obstructive sleep apnea (OSA), lumbar radiculopathy affecting both lower extremities, post-concussion headaches, bilateral pes planus, and a back disability. The veteran also appeals the denial of readjudication for these conditions based on new and relevant evidence. The Board denied readjudication for the back disability, bilateral pes planus, and post-concussion headaches, finding that the evidence submitted since the January 1992 denial was not new and relevant. The evidence showed pre-service conditions for these claims, and the post-service records did not indicate an increase in severity during service. The Board denied service connection for OSA and lumbar radiculopathy, noting the lack of in-service onset or aggravation and that the lumbar radiculopathy was attributed to a non-service-connected disability. The veteran's claim that obesity, caused by a service-connected back disability, led to OSA was also denied as the underlying back disability was not service-connected. Service connection for tinnitus was granted, with the Board finding the veteran credible regarding onset during service and noting conceded military noise exposure, resolving doubt in the veteran's favor despite the lack of in-service treatment records.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210302-143288

Full Decision Text

Citation Nr: A26032011
Decision Date: 04/07/26 Archive Date: 04/07/26

DOCKET NO. 210302-143288
DATE: April 7, 2026

ORDER

As new and relevant evidence has not been received, the petition to readjudicate the claim for service connection for?a back disability?is denied.

As new and relevant evidence has not been received, the petition to readjudicate the claim for service connection for bilateral pes planus is denied.

As new and relevant evidence has not been received, the petition to readjudicate the claim for service connection post-concussion headaches is denied.

Service connection for obstructive sleep apnea (OSA) is denied.?

Service connection for lumbar radiculopathy affecting the right lower extremity is denied.

Service connection for lumbar radiculopathy affecting the left lower extremity is denied.

Service connection for tinnitus is granted.

FINDINGS OF FACT

1. In an?unappealed?January 1992 rating decision?the?RO denied?the?claims for service connection?for a back disability, bilateral pes planus and post-concussion headaches; evidence received since the final?January 1992?rating?decision is not new and relevant.??

2. OSA was not shown in service or for many years thereafter and the evidence weighs against a finding that OSA is causally or etiologically related to any disease, injury, or incident in service, or a service-connected disability.

3. Lumbar radiculopathy?of the lower extremities has been attributed to a non-service-connected disability.

4. Resolving reasonable doubt in the?Veteran's favor, tinnitus was incurred in service.

CONCLUSIONS OF LAW

1. The criteria for?readjudicating?the claim for entitlement to service connection for a back disability have not been met.? 38?C.F.R. §?3.156?(d).

2. The criteria for?readjudicating?the claim for entitlement to service connection for bilateral pes planus have not been met.? 38?C.F.R. §?3.156?(d).

3. The criteria for?readjudicating?the claim for entitlement to service connection post-concussion headaches have not been met.? 38?C.F.R. §?3.156?(d).

4. The criteria for entitlement to?service?connection for OSA have not been met.? 38 U.S.C. §§ 1110, 1131, 5107;?38 C.F.R. §§?3.303, 3.310.?

5. The criteria for service connection for?right lower extremity lumbar radiculopathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107;?38 C.F.R. §§ 3.303, 3.310.

6. The criteria for service connection for?left lower extremity lumbar radiculopathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107;?38 C.F.R. §§ 3.303, 3.310.

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

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1988 to September 1991.?

The?Veteran?appeals?March 2020 and December 2020 Appeals Modernization Act (AMA) rating decisions. The?Veteran?submitted?a timely?AMA?Notice of Disagreement (Hearing Review Lane) received?March 2021.??See?VA Form 10182.?

The?Veteran?testified?before?the undersigned?Veterans Law Judge?October?2024 and had 90 days?thereafter to?submit?additional?evidence in support of this appeal pursuant to the?AMA?Hearing Lane election.

New and Relevant Evidence

Generally, a?claim that has been denied in a final?unappealed?rating decision may not thereafter be reopened and allowed.?38 U.S.C. §§ 7104, 7105.? Similarly, a decision by the Board is final unless the?Chairman?of the Board orders reconsideration of the decision.??See?38 U.S.C. § 7104(a); 38 C.F.R. § 20.1100(a).???

38 U.S.C. § 5108 is
Law Judge?October?2024 and had 90 days?thereafter to?submit?additional?evidence in support of this appeal pursuant to the?AMA?Hearing Lane election.

New and Relevant Evidence

38 U.S.C. § 5108 is an exception to the rule of finality.? Under this statute, a veteran or his or her authorized representative, if any, who disagrees with a prior VA decision may file a supplemental claim by submitting in writing or electronically a complete application on a form prescribed by the Secretary any time after the agency of original jurisdiction issues notice of a decision, regardless of whether the claim is pending or has become finally adjudicated.? 38 U.S.C. § 5108; see also?38 C.F.R. § 3.2501.? If new and relevant evidence is presented or secured with respect to the supplemental claim, the AOJ will?readjudicate?the claim taking into consideration?all of?the evidence of record.?Id.? If new and relevant evidence is not presented or secured, the AOJ will issue a decision finding that there was insufficient evidence to?readjudicate?the claim.?Id.? In?determining whether new and relevant evidence is presented or secured, VA will consider any VA treatment records?reasonably?identified?by the claimant and any evidence received by VA after VA issued notice of a decision on the claim and while the evidentiary record was closed.?Id.???

New evidence is evidence not previously part of the actual record before agency adjudicators.? 38 C.F.R. §§ 3.2501(a), 3.156(d).? Relevant evidence is information that tends to prove or disprove a matter at issue in a claim.?Id.? Relevant evidence includes evidence that raises a theory of entitlement that was not previously addressed.?Id.???

The evidentiary record for a supplemental claim includes all evidence received by VA before VA issues notice of a decision on the supplemental claim.? 38 C.F.R. § 3.2501(b).? For VA to?readjudicate?the claim, the evidentiary record must include new and relevant evidence that was not of record as of the date of notice of the prior decision.?Id.???

Upon receipt of a?substantially complete?supplemental claim, VA's duty to?assist?in the gathering of evidence under 38 C.F.R. § 3.159 is triggered and includes any such?assistance?that may help secure new and relevant evidence as defined in 38 C.F.R. § 3.2501(a) to complete the supplemental claim application.? 38 C.F.R. § 3.2501(c).???

1. Readjudication?of the claim for service connection for a back disability.

The?Veteran's claim for service connection for a back disability was originally denied in an?unappealed?January 1992 rating decision because?the evidence?of record showed that the claimed back disability existed prior to service and there was no evidence of a disease or injury during service that caused an increase in the pre-service level of disability.??

The?Veteran?did not file?a timely notice of disagreement with January 1992 rating decision and it became final. See 38?U.S.C. §?7105;?38?C.F.R. §§?3.104, 3.156, 20.302, 20.1103.??

The question in this case is whether the?Veteran?submitted?evidence after the prior final denial of his claim?for service connection for a back disability, and if so, whether that evidence is new and relevant to his claim.??

The evidence considered at the time?of the?January 1992 rating?decision?included statements?from the?Veteran that are identical to the current contentions, pre-service treatment records, service treatment records and a VA examination report.??

Treatment records prior to service showed that the Veteran was seen for post traumatic lumbar sprain and post traumatic cephalgia after motor vehicle accident (MVA) in February 1984. February 1982 and January 1986 imaging studies of the spine were withing normal limits.

On service enlistment examination in November 1987, the examiner noted a history of cervical spine fracture and a history of back problems
whether that evidence is new and relevant to his claim.??

On service enlistment examination in November 1987, the examiner noted a history of cervical spine fracture and a history of back problems associated with a February 1984 MVA. He was seen in October 1989 for complaints of intermittent low back pain and pain in the right foot due to an MVA seven years earlier.

On VA examination in January 1991, the Veteran reported low back pain. He related onset of back pain after he lifted a 55-gallon barrel in 1990.

Orthopedic examination showed a normal back.

Evidence associated with the record since the?January 1992 rating?decision?includes VA and private treatment?records that document the?Veteran's continued?treatment for back pain after 2017.

VA treatment notes in February 2017, he presented for sudden onset of back pain and sciatica for the preceding three weeks. He reported missing work that year due to back pain. He was employed as truck driver. In March 2018, he was seen for back pain since shoveling in January of that year.

In 2018, he was diagnosed with lumbar degenerative disc disease.

VA treatment notes in June 2018 the Veteran reported onset of back pain during service. Reportedly, that when he was undergoing basic training he sustained an injury to his back when his drill instructor kneeled down hard on him when he was on his knees and elbows because he was not close enough to the ground. He stated that he was treated with pain medications and muscle relaxants. He denied any further treatment.

The Veteran served on active duty from January 1988 to September 1991. Attributing the Veteran's current back problem to this incident so many years ago (as opposed to other events cited above) is, at best, problematic based on the medical evidence of record.

In June 2019, he underwent bilateral L3-5 laminectomy for a diagnosis of lumbar stenosis.

Private treatment records in June 2019, reflect a history of back problems since the February 1982 MVA. Reportedly, his back pain worsened over the preceding 2.5 years.

This evidence is?"new"?as it was not previously part of the record in January 1992. However, this evidence is not relevant as it does not tend to prove or disprove whether the?Veteran's pre-existing back disability was aggravated by service. Rather, the evidence appears to show that the pre-existing back disability did not undergo an increase in severity during service, as the records is negative for any back complaints from 1998 to il 2017, more than 25 years after discharge therefrom.

Also added to the file is?the Veteran's testimony before the Board asserting that his pre-existing back disability was permanently worsened by trauma incurred in service. The lay statement is simply a reiteration of previously considered general assertions of service connection (these are not new contentions). Even assuming their credibility, the statements and testimony are cumulative and cannot be considered new and relevant evidence.?

Simply?stated, the?Veteran?is repeating his prior claim.????

It is important for the Veteran to understand that even if the Board readjudicated the claim, the claim would be denied.? The probative value of the service and post-service medical records would provide highly probative evidence against this claim.?

The Board notes that VA is unable to take any substantive action on this claim without the submission of additional evidence, in this instance, evidence beyond the Veteran's own statements, that indicates his pre-existing back issues were aggravated by his military service and that his current back problems were not part of the normal progression of those pre-existing issues. Examples of such evidence would include a medical opinion or evidence that the Veteran the Veteran's back disability underwent an increase in severity as due to in-service trauma. As discussed, such evidence has not been received and the request for readjudication is denied. The Veteran in this case is simply making the same contention made years ago. Since no new and relevant evidence has been submitted in conjunction with the application to reopen his previously denied claim for entitlement to service connection, no additional development is required here
submission of additional evidence, in this instance, evidence beyond the Veteran's own statements, that indicates his pre-existing back issues were aggravated by his military service and that his current back problems were not part of the normal progression of those pre-existing issues. Examples of such evidence would include a medical opinion or evidence that the Veteran the Veteran's back disability underwent an increase in severity as due to in-service trauma. As discussed, such evidence has not been received and the request for readjudication is denied. The Veteran in this case is simply making the same contention made years ago. Since no new and relevant evidence has been submitted in conjunction with the application to reopen his previously denied claim for entitlement to service connection, no additional development is required here.

Accordingly,?readjudication?of the?Veteran's service connection claim for?a back disability is not warranted?because VA has not received?new?and relevant evidence in conjunction with this?claim.?

2. Readjudication?of the claims for service connection post-concussion headaches and bilateral pes planus.

The?Veteran's claims for service connection for?headaches and bilateral pes planus were originally denied in an?unappealed?January 1992 rating decision because?the evidence?of?record showed that the claimed bilateral pes planus and headache conditions existed prior to service and there was no evidence of a disease or injury during service that caused an increase in the pre-service level of disability. The Veteran did not file?a timely?notice of disagreement?with January 1992 rating decision and it became final. See?38?U.S.C. §?7105;?38?C.F.R. §§?3.104, 3.156, 20.302, 20.1103.??

The evidence considered at the time?of the?January 1992 rating?decision?included statements?from the?Veteran, pre-service treatment records, service treatment records and a VA examination report.??

Treatment records prior to service showed that the Veteran was seen for persistent headaches associated with his February 1984 MVA.

On service enlistment examination in November 1987, the examiner noted mild asymptomatic bilateral pes planus, along with a history of cervical spine fracture and a February 1984 MVA. The Veteran was seen in November 1988 for complaints of intermittent headaches since the 1984 MVA.

On VA examination report in January 1991, the Veteran reported right foot pain and headaches. Orthopedic examination showed flat feet. Neurological examination showed post-concussive headaches.

Evidence associated with the record since the?January 1992 rating?decision?includes VA and private treatment records which fail to document any complaints or treatment for flat feet or headaches.

Again, this evidence is?"new"?as it was not previously part of the record January 1992. However, this evidence is not relevant as it does not tend to prove or disprove whether the?Veteran's pre-existing bilateral pes planus and headaches were aggravated during service. If anything, the lack of any complaints or treatment associated with the Veteran's feet or headaches after service, suggests improvement of the conditions as opposed to an increase in disability.

Also added to the file is?the Veteran's testimony before the Board asserting that his pre-existing bilateral foot disorders and post-concussion headaches were aggravated during service. The lay statements are simply a reiteration of previously considered general assertions of service connection (these are not new contentions). Even assuming their credibility, the statements and testimony are cumulative and cannot be considered new and relevant evidence.?

Simply?stated, the?Veteran?is again repeating his prior claims.????

Since no new and relevant evidence has been submitted in conjunction with the application to reopen his previously denied claims for entitlement to service connection, no additional development is required here.

Accordingly,?readjudication?of the?Veteran's service connection claims for?service connection for bilateral pes planus and post-concussion headaches is not warranted because VA has not received?new?and relevant evidence in conjunction with these claims.?

Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.??38?U.S.C. § 1131;?38?C.F.R. §?3.303.? Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein.??38?C.F.R. §?3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.? 38?C.F.R. §?
evidence in conjunction with these claims.?

Service Connection

To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "nexus" between the present disability and the disease or injury incurred or aggravated during service.? Horn v.? Shinseki, 25?Vet. App.?231, 236 (2010);?Shedden?v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004);?Gutierrez v.?Principi, 19?Vet. App.?1, 5 (2004) (citing Hickson v.?West, 12?Vet. App.?247, 253 (1999)).? In many cases, medical evidence is required to meet the requirement that the evidence be "competent."? However, when a disability may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.? Barr v. Nicholson, 21?Vet. App.?303, 309 (2007).????????

Service connection for certain chronic diseases?may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38?U.S.C. §§?1101, 1112;?38?C.F.R. §§?3.307(a)(3), 3.309(a).? Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service.??38?C.F.R. §§?3.307(a).?

When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.??38?C.F.R. §?3.303 (b).? To be "shown in service," the disease identity must be established, and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013);?see also 38?C.F.R. §?3.303(b).? There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336.????????

Service connection may also be granted on a secondary basis for a condition that is not directly caused by the?veteran's service.? 38?C.F.R. §?3.310.? In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities.? Buckley v. West, 12?Vet. App.?76, 84 (1998); see also Wallin?v. West, 11?Vet. App.?509, 512 (1998).? In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. ?See Allen v. Brown,?7?Vet. App.?439 (1995); 38?C.F.R. §?3.310 (b); see also Spicer v. McDonough, No. 2022-1239 (Fed. Cir. March 8, 2023) (invalidating the requirement of "proximate cause" and instead held a "but for" causation or aggravation is enough to show entitlement to secondary service connection).???????

The concept of
Wallin?v. West, 11?Vet. App.?509, 512 (1998).? In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. ?See Allen v. Brown,?7?Vet. App.?439 (1995); 38?C.F.R. §?3.310 (b); see also Spicer v. McDonough, No. 2022-1239 (Fed. Cir. March 8, 2023) (invalidating the requirement of "proximate cause" and instead held a "but for" causation or aggravation is enough to show entitlement to secondary service connection).???????

The concept of obesity as an "intermediate step" in the service-connection context was recently addressed by the Court of Appeals for Veterans Claims (Court) in Garner v. Tran, 33?Vet. App.?241 (2021).??

In Garner, the Court observed that in January 2017, VA's Office of General Counsel (OGC) issued a precedential opinion, finding that although obesity cannot be service connected on a direct basis, obesity may serve as an intermediate step between a service-connected disability and a condition claimed on a secondary basis.? VAOPGCPREC 1-2017.? To decide such claims, OGC stated the analysis involves addressing the following questions: (1) whether the service-connected disability caused the veteran to become obese; (2) if so, whether obesity, as a result of the service-connected disability, was a substantial factor in causing the claimed secondary disability; and (3) whether the claimed secondary disability would not have occurred but for obesity caused by the service-connected disability. Id.? The Court acknowledged that the soundness of OGC's guidance was endorsed in its decision in Walsh v. Wilkie, 32?Vet. App.?300, 305-07 (2020).? However, the Court noted that neither OGC's opinion nor Walsh provided guidance regarding what factual circumstances would give rise to claims for secondary service connection with this theory of entitlement.?

The Court provided the following non-exhaustive list of considerations that could give rise to a reasonably raised theory of secondary service connection with obesity as an intermediate step: (1) mobility limitations or reduced physical activity as a result of a service-connected physical disability (in particular, orthopedic conditions or chronically painful conditions); (2) reduced physical activity or inability to follow a course of exercise or diet as a result of service-connected mental disability; (3) side effects of medication (e.g., weight gain), where the medication is prescribed for a service-connected disability; (4) treatise evidence suggesting a connection between all or some combination of obesity, service-connected disability, and the claimed condition; (5) lay statements by a veteran attributing weight gain or obesity to the service-connected disability; and (6) statements by treating physicians or medical examiners attributing weight gain or obesity to the service-connected disability. Id. at 248.?

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.? VA shall consider all information and medical and lay evidence of record.? Where 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; 38?C.F.R. §?3.102; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).?????

3. Entitlement to service connection for OSA and bilateral lower extremity lumbar radiculopathy.

The Veteran seeks service connection for OSA and bilateral lower extremity lumbar radiculopathy.?

The evidence reflects an assessment of bilateral lumbar radiculopathy since 2017. VA treatment records also show that the Veteran was initially diagnosed with OSA following a 2019 sleep study that confirmed the diagnosis.

The Veteran has not asserted, nor does the record reflect that he initially became symptomatic for OSA or bilateral lower extremity radicular symptoms during service, or that OSA or neurological symptoms affecting the lower extremities are otherwise related to any aspect of his service approximately 34 years ago, or manifested within one year of discharge therefrom.?

The Veteran has only been claimed that the Veteran's bilateral lumbar radiculopathy is secondary to the back disability.

Concerning OSA, the Veteran asserts that his back disability with bilateral lower extremity radiculopathy resulted in him becoming obese, which, he claims, in turn has caused his claimed OSA.

Accordingly, since the Veteran does?not?contend that bilateral lower
Veteran has not asserted, nor does the record reflect that he initially became symptomatic for OSA or bilateral lower extremity radicular symptoms during service, or that OSA or neurological symptoms affecting the lower extremities are otherwise related to any aspect of his service approximately 34 years ago, or manifested within one year of discharge therefrom.?

The Veteran has only been claimed that the Veteran's bilateral lumbar radiculopathy is secondary to the back disability.

Concerning OSA, the Veteran asserts that his back disability with bilateral lower extremity radiculopathy resulted in him becoming obese, which, he claims, in turn has caused his claimed OSA.

Accordingly, since the Veteran does?not?contend that bilateral lower extremity radiculopathy and/or OSA?are directly related to service and because the record similarly does not reasonably raise the theory of direct service connection, the Board will address only whether the Veteran is entitled to service connection for these disabilities?on a secondary?basis.? See Robinson v. Mansfield,?21?Vet. App. 545, 552-56?(2008) (concluding "that the Board is?not required sua sponte to raise and reject 'all possible' theories of entitlement in order to render a valid opinion" and "commits error only in failing to discuss a theory of entitlement that was raised either by the appellant or by the evidence of record"), aff'd sub nom. Robinson v. Shinseki,?557 F.3d 1355?(Fed.Cir.2009) (stating that "[w]here a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory").??

The findings set forth earlier in this decision reflect that service connection for a back disability has?not?been?established.? As such, there is no factual or?legal basis upon which to award service connection for a?disability?that is claimed as secondary to a?disability?that is?not?service connected.? See?38?C.F.R. §?3.310.??

In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.? However, as the most persuasive evidence weighs against the claims, the benefit of the doubt rule is?not?applicable. ?38?U.S.C. §?5107?(b); See Lynch, supra.

4. Entitlement to service connection for tinnitus.

The Veteran seeks service connection for tinnitus. At the October?2024 Board hearing he testified that he initially noticed buzzing in his ears while stationed in Germany during active duty service.

Unlike back disabilities, there is a subjective nature to this problem. The Board notes that?the Veteran is considered competent to report the presence of tinnitus, and there is no indication from the record that his account of tinnitus during his lifetime is not credible, and a VA examiner in November 2019 appeared to have found the Veteran's account of current tinnitus credible.? Layno v. Brown, 6?Vet. App.?465 (1994); Charles v. Principi, 16?Vet. App.?370 (2002) (finding a lay person competent to identify tinnitus).? Thus, a current disability has been established.

Initially, the Board notes that concerning?tinnitus, as previously noted, the Veteran's personnel form DD-214 documents his military occupational specialty (MOS) as petroleum supply specialist, which indicates a low probability of hazardous noise exposure.?? The Veteran had been awarded multiple badges that were indicative of noise exposure, and the March 2020 rating decision on appeal reflects a favorable finding of conceded noise exposure during military service. Under the AMA, the Board is bound by this favorable finding. 38 C.F.R. § 3.104(c).

However, even when conceding that the Veteran was exposed to acoustic trauma during service (military service is very loud), this is not the same as having sustained the type of injury that causes chronic hearing disability.? In other words, even if she was exposed to acoustic trauma during service, this does not automatically mean there were chronic residuals.??

The service treatment records do not document any complaints, history or findings consistent with tinnitus.???

After service, VA treatment records since 2017, noted complaints of constant bilateral tinnitus for the last 17 plus years, along with a history of military noise exposure for approximately 3.5 years with use of hearing protection. He reported driving tractor trailers for many years but denied any other occupational or recreational noise exposure.

On VA examination in November 2019, the examiner opined that the Veteran's tinnitus was less likely than not caused by or as a result of military
causes chronic hearing disability.? In other words, even if she was exposed to acoustic trauma during service, this does not automatically mean there were chronic residuals.??

The service treatment records do not document any complaints, history or findings consistent with tinnitus.???

On VA examination in November 2019, the examiner opined that the Veteran's tinnitus was less likely than not caused by or as a result of military noise exposure because there was no complaint of tinnitus in service.

The?Board is?cognizant?that, the VA examiner?provided evidence against?the?claim.? The?VA examiner appears to have relied on?the?lack?of?a complaint or finding?of tinnitus during?service; however,?the?lack?of?treatment?in service isn't necessarily dispositive of?the?issue, particularly where, as here, the?Veteran has consistently reported onset?of?tinnitus?due to?in-service?noise exposure, and the RO has conceded military noise exposure.? In?this case, the?lack of?treatment during service doesn't automatically rule out whether the?Veteran's?tinnitus initially manifested in?service.????

In light of the fact that the?Veteran?has been diagnosed with tinnitus, testimony from the?Veteran?regarding onset of tinnitus in service associated with in-service noise exposure, and as service acoustic trauma has been conceded, the Board finds that the competent and credible assertions from the Veteran provide a nexus linking his current tinnitus to his in-service noise exposure. Resolving all reasonable doubt in the?Veteran's favor, the Board finds that the most persuasive competent and credible evidence creates a nexus between the?Veteran's current tinnitus and active service.? Therefore, service connection is granted.??See?38?U.S.C. §?5107; 38?C.F.R. §?3.102;?Lynch, supra.????

John J. Crowley

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Azizi, T.

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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