HEARING LOSS

T. RAYMOND · 2026 · Case ID: A26032163

DENIED

Summary

The Veteran, an Army veteran who served from September 1997 to March 2002, appeals the denial of service connection for gastritis and an initial compensable rating for left ear hearing loss. The Veteran also withdrew his appeals for service connection for right ear hearing loss and an increased rating for left upper extremity radiculopathy during a November 2024 Board hearing. Regarding gastritis, the Board found no current diagnosis in the evidence of record, despite the Veteran's claim of symptoms and participation in toxic exposure risk activities (TERA). The Board noted the Veteran's lay testimony regarding symptoms but found it lacked probative value for diagnosis. The Board also considered the Veteran's arguments made after the initial decision but determined they could not form the basis of a pre-decisional duty to assist error. For left ear hearing loss, the Board reviewed VA examination results from September 2020, which showed a 35 dB puretone average and 94 percent speech discrimination, resulting in a zero percent rating under the applicable tables. The Board found the Veteran's lay testimony regarding hearing difficulties credible but noted that disability ratings for hearing loss are mechanically applied based on audiometric testing. The evidence persuasively weighed against a compensable rating, and the benefit-of-the-doubt rule was not applied. Consequently, service connection for gastritis was denied, and an initial compensable rating for left ear hearing loss was denied.

Rationale

Withdrawal of appeal; Explicit and unambiguous withdrawal; Veteran understood consequences

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210702-169793

Full Decision Text

Citation Nr: A26032163
Decision Date: 04/08/26 Archive Date: 04/08/26

DOCKET NO. 210702-169793
DATE: April 8, 2026

ORDER

The appeal seeking entitlement to service connection service connection for right ear hearing loss is dismissed.

The appeal seeking entitlement to an initial rating in excess of 20 percent for radiculopathy, left upper extremity, is dismissed.

Entitlement to service connection for gastritis is denied.

Entitlement to an initial compensable rating for left ear hearing loss is denied.

FINDINGS OF FACT

1. The Veteran knowingly and voluntarily withdrew his appeal seeking entitlement to service connection for right ear hearing loss during the November 2024 Board hearing; the withdrawal was explicit and unambiguous, and the Veteran was informed of the consequences of withdrawal by the Veterans Law Judge who held the hearing.

2. The Veteran knowingly and voluntarily withdrew his appeal seeking entitlement to an initial rating in excess of 20 percent for radiculopathy, left upper extremity, during the November 2024 Board hearing; the withdrawal was explicit and unambiguous, and the Veteran was informed of the consequences of withdrawal by the Veterans Law Judge who held the hearing.

3. The evidence of record persuasively weighs against finding that the Veteran has had a diagnosis of a gastritis condition at any time during or approximate to the pendency of the claim.

4. The Veteran's hearing loss was manifested by hearing impairment no worse than Level I in the left ear.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of entitlement to service connection for right ear hearing loss by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

2. The criteria for withdrawal of entitlement to an initial rating in excess of 20 percent for radiculopathy, left upper extremity, by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

3. The criteria for entitlement to service connection for gastritis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

4. The criteria for entitlement to an initial compensable rating for left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from September 1997 to March 2002.

These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2020, January 2021, and April 2021 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).

Procedurally relevant, on February 19, 2020, the Veteran submitted a VA 21-526EZ, Fully Developed Claim (Compensation), related to the issues on appeal herein. Thereafter, in a September 2020 rating decision, entitlement to left ear hearing loss was granted with an evaluation of 0 percent (noncompensable), effective February 19, 2020. The September 2020 rating decision also, in pertinent part, denied entitlement to service connection for right ear hearing loss and gastritis. Subsequently in September 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested, in relevant part, review of the September 2020 decision's denial of service connection for gastritis and assignment of a noncompensable evaluation for the service-connected left ear hearing loss. In January 2021, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal for the gastritis and left ear hearing loss issues, which considered the evidence of record at the time of the prior September 2020 decision. In an April 2021 rating decision, service connection for left upper extremity radiculopathy was granted with an evaluation of 20 percent, effective February 19, 2020.

In July 2021, the Veteran submitted a VA Form 10182, Decision Review Request Board Appeal (Notice of Disagreement (NOD)) in response to the rating decisions on appeal and elected Hearing Review docket.

The Veteran testified at a Board hearing conducted by a Veterans Law Judge in November 2024 and a transcript for the hearing has been associated with the claims file.

Therefore, the Board
gastritis and left ear hearing loss issues, which considered the evidence of record at the time of the prior September 2020 decision. In an April 2021 rating decision, service connection for left upper extremity radiculopathy was granted with an evaluation of 20 percent, effective February 19, 2020.

The Veteran testified at a Board hearing conducted by a Veterans Law Judge in November 2024 and a transcript for the hearing has been associated with the claims file.

Therefore, the Board may only consider the evidence of record at the time of the September 2020 agency of original jurisdiction (AOJ) decision for the service connection issues for right ear hearing loss, gastritis, and initial increased rating issue for the service-connected left ear hearing loss, as well as any evidence submitted by the Veteran at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). As related to the left upper extremity radiculopathy initial increased rating issue, the Board may only consider the evidence of record at the time of the April 2021 AOJ decision, as well as any evidence submitted by the Veteran at the hearing or within 90 days following the hearing. See id. If evidence was submitted outside the aforementioned respective evidentiary windows noted above for the issues on appeal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

It is also of note that during the November 2024 Board hearing, the Veteran revoked his representation by Disabled American Veterans and elected to represent himself pro se.

Withdrawal

Entitlement to service connection for right ear hearing loss.

Entitlement to an initial rating in excess of 20 percent for radiculopathy, left upper extremity.

The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees. 38 U.S.C. § 7105(d). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by an appellant or an appellant's authorized representative. Id.

An oral withdrawal of an appeal, such as one made at a hearing, must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the appellant. Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011).

During the November 2024 Board hearing, the Veteran expressed his desire to withdraw the pending appeal of the issues of entitlement to service connection for right ear hearing loss and an initial increased rating for radiculopathy, left upper extremity. As reflected in the hearing transcript, the withdrawal was explicit and unambiguous. Moreover, the Veterans Law Judge who held the hearing explained the consequences of the withdrawal and the Veteran indicated that he fully understood the consequences. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Hence, no allegations of errors of fact or law remain for appellate consideration with respect to said claims. Accordingly, the Board does not have jurisdiction to review the appeal as to these particular matters, and they must be dismissed.

Service Connection

Entitlement to service connection for gastritis.

The Veteran contends that he has gastritis as a result of service.

"Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability. In the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (internal citation omitted). The requirement of a "current disability" is satisfied if a disorder is
, no allegations of errors of fact or law remain for appellate consideration with respect to said claims. Accordingly, the Board does not have jurisdiction to review the appeal as to these particular matters, and they must be dismissed.

Service Connection

Entitlement to service connection for gastritis.

The Veteran contends that he has gastritis as a result of service.

"Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability. In the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (internal citation omitted). The requirement of a "current disability" is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal; service connection may be awarded even though the disability resolves prior to adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The standard is whether a disability exists at the time the claim was filed. See Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013).

Having reviewed the evidence at the time of the September 2020 rating decision and evidence submitted by the Veteran within 90 days of the November 2024 Board hearing, the Board finds that the Veteran does not have a current diagnosis of gastritis and has not had one at any time during the pendency of the claim or recent to the filing of the claim. See Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321.

The available treatment records within the appropriate evidentiary window that the Board may consider also do not reflect a current diagnosis of gastritis.

The Board acknowledges that the Veteran has not been afforded a VA examination in connection with his claim. VA's duty to assist includes providing a medical examination when necessary to decide a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Such development is necessary if the evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) shows that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "shows" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, the evidence at the time of the September 2020 rating decision does not reflect a diagnosis of a gastritis condition.

The Board acknowledges that the Veteran participated in a toxic exposure risk activity (TERA) during service. See August 2023 other (TERA Memo) (2). Section 303 of the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act) provides that, if a Veteran submits a claim for service connection with evidence of disability and evidence of participation in a 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 claimed disability and the toxic exposure risk activities during service. 38 U.S.C. § 1168. However, as the evidence at the time of the September 2020 rating decision or the evidence submitted by the Veteran within 90 days of the November 2024 Board hearing does not reflect a current gastritis condition, the Board finds remand for a VA examination, to include based on TERA during service, is not warranted.

Although the Veteran is competent to report his symptoms, a determination as to whether the Veteran has a diagnosis of a gastritis condition is a complex matter requiring related medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (holding that a lay person is not considered competent to testify regarding medically complex issues). As the Veteran has no known or reported medical expertise, he is not legally competent to diagnose the condition; thus, his opinion in that respect lacks probative value.

Overall, this evidence, including the medical and lay evidence, shows that
, the Board finds remand for a VA examination, to include based on TERA during service, is not warranted.

Overall, this evidence, including the medical and lay evidence, shows that the Veteran is not diagnosed with gastritis and has not been diagnosed with gastritis proximate to filing the claim.

In reaching this decision, the Board has considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018).

However, the Veteran has not asserted, and the evidence of record at the time of the September 2020 decision, from or near the date of claim, did not indicate he experienced functional impairment of earning capacity as a result of his claimed gastritis condition. Thus, this claim does not meet the Saunders threshold.

The Board acknowledges the Veteran's assertions made subsequent to the September 2020 rating decision on appeal for this issue in the September 17, 2020, VA Form 20-0996 Request for Higher-Level Review, June 2023 Lay Statement, and November 2024 Board hearing regarding onset of symptoms during service and the impact the condition has had on his daily activities at work and at home. However, such statements and arguments were made after the September 2020 rating decision on appeal. Under the Appeals Modernization Act (AMA), the Board is responsible for identifying duty to assist errors made by the AOJ prior to the decision on appeal and may only remand for duty to assist errors that are "pre-decisional." 38 C.F.R. § 20.802(a). The aforementioned argument/assertions, and in particular, the post-decisional lay evidence, cannot form the basis of a pre-decisional duty to assist error as it was not of record before the September 2020 rating decision on appeal was issued. Given the foregoing, the Board finds that a VA examination was not warranted under McLendon or Saunders at the time of the AOJ decision on appeal for this issue since no pre-decisional duty to assist error occurred in that regard.

Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence weighs persuasively against the claim and is not in approximate balance. Where, as here, there is no probative evidence indicating that the Veteran has a current diagnosis for the disability for which service connection is sought, there can be no valid claim for service connection. Therefore, entitlement to service connection for gastritis is not warranted. 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

The Board reiterates that if the Veteran wants this post-decisional lay evidence or otherwise has evidence indicating he has been diagnosed with a gastritis condition considered in this claim, he should file a Supplemental Claim (VA Form 20-0995) and submit or identify such 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.

Increased Rating

Entitlement to an initial compensable rating for left ear hearing loss.

Ratings of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing (Maryland CNC) together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 Hertz (Hz). 38 C.F.R. § 4.85, Diagnostic Code 6100.

Once these test results have been obtained, employing Table VI, a Roman numeral designation of hearing impairment is ascertained based on a combination of the percent of speech discrimination and pure tone threshold average. Once a Roman numeral designation of auditory acuity level for each ear
an initial compensable rating for left ear hearing loss.

Once these test results have been obtained, employing Table VI, a Roman numeral designation of hearing impairment is ascertained based on a combination of the percent of speech discrimination and pure tone threshold average. Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage for bilateral hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear. Id.

As relevant to the Veteran's claim, when impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f).

Table VIA may also be used for "exceptional patterns of hearing impairment," where the puretone thresholds at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) are 55 decibels (dB) or more, or where the puretone thresholds are 30 dB or less at 1000 Hz and 70 dB or more at 2000 Hz. 38 C.F.R. § 4.86.

In September 2020, the Veteran underwent a VA hearing examination. During examination, the examiner noted the Veteran reported trouble hearing his communications radio, had difficulty understanding conversational speech, would ask for repetition, and had trouble with hearing the TV. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds for the left ear, in decibels, were as follows:

HERTZ

1000 2000 3000 4000

LEFT 15 30 50 45

Speech audiometry revealed speech recognition ability of 94 percent in the left ear and his puretone average was 35 dB in the left ear.

The examination did not reveal any exceptional patterns of hearing impairment as defined in 38 C.F.R. § 4.86, or that the speech recognition discrimination test was not appropriate for consideration. Therefore, Table VIA is inapplicable.

Utilizing Table VI, the left ear combination of the 35 dB puretone threshold average and the 94 percent speech discrimination for left ear results in the designation of a Roman numeral I. Since the right ear is not service-connected, Roman numeral I will be designated for the right ear. 38 C.F.R. § 4.85(f). When the Roman numerals I and I are applied to Table VII, the resulting percentage evaluation is zero percent or noncompensable.

There is nothing in the available records that indicate his hearing loss is worse than what was reported in the above noted VA examination.

Based on the evidence above, an initial compensable rating for the Veteran's left ear hearing loss is not warranted.

The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's assertions of having people repeat themselves, difficulty hearing the TV, difficulty understanding conversational speech, and difficulty hearing his communications radio. The Veteran is competent to report difficulty with his hearing, and the Board has no reason to challenge the credibility of his contentions. However, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992).

The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017).

In sum, the most probative evidence of record persuasively weighs against the assignment of an initial compensable rating for left ear hearing loss. Therefore, an initial compensable rating for left ear hearing loss is not warranted. As the most probative evidence of record persuasively weighs against a compensable rating, the benefit
impact that the Veteran describes is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017).

In sum, the most probative evidence of record persuasively weighs against the assignment of an initial compensable rating for left ear hearing loss. Therefore, an initial compensable rating for left ear hearing loss is not warranted. As the most probative evidence of record persuasively weighs against a compensable rating, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

T. Raymond

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board J.C., Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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