HEARING LOSS

S. MERRICK · 2026 · Case ID: A26033386

MIXED

Summary

The veteran served from September 1993 to July 1994 as an infantryman. The veteran appeals the denial of service connection for bilateral hearing loss and seeks service connection for tinnitus and an acquired psychiatric disorder. The veteran also has multiple claims remanded for further development, including sleep apnea, bilateral wrist disabilities, chronic headaches/migraines, neck disability, left shoulder disability, bilateral elbow disabilities, bilateral knee disabilities, and a right quadriceps disability. The Board denied service connection for bilateral hearing loss, finding the veteran did not have a diagnosed disability for VA purposes, and the VA examiner's opinion was less likely than not related to service. However, the Board granted service connection for tinnitus, resolving doubt in the veteran's favor, finding it began in service and continued to the present day, based on the veteran's lay statements and the examiner's acknowledgment of onset. For the acquired psychiatric disorder, the Board granted service connection, resolving doubt in the veteran's favor, based on a private examiner's opinion that linked the depressive disorder to the service-connected right shoulder disability. The Board remanded several other claims due to a pre-decisional duty to assist error, requiring new VA examinations to assess diagnosis, functional impairment, nexus to service, and secondary or aggravated relationships to service-connected conditions.

Rationale

No diagnosed hearing loss for VA purposes.; VA examiner opined less likely than not related to service.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210514-160178

Full Decision Text

Citation Nr: A26033386
Decision Date: 04/10/26 Archive Date: 04/10/26

DOCKET NO. 210514-160178
DATE: April 10, 2026

ORDER

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for tinnitus is granted.

Entitlement to service connection for an acquired psychiatric disorder is granted.

REMANDED

Entitlement to service connection for obstructive sleep apnea is remanded.

Entitlement to service connection for a right wrist disability is remanded.

Entitlement to service connection for a left wrist disability is remanded.

Entitlement to service connection for chronic headache/migraine is remanded.

Entitlement to service connection for a neck disability is remanded.

Entitlement to service connection for a left shoulder disability is remanded.

Entitlement to service connection for a right elbow disability is remanded.

Entitlement to service connection for a left elbow disability is remanded.

Entitlement to service connection for a right knee disability is remanded.

Entitlement to service connection for a left knee disability is remanded.

Entitlement to service connection for a right quadriceps disability is remanded.

FINDINGS OF FACT

1. The Veteran does not have diagnosed hearing loss for VA purposes.

2. Resolving all doubt in favor of the Veteran, the Veteran has diagnosed tinnitus that was incurred in and due to his time in service.

3. Resolving all doubt in favor of the Veteran, his acquired psychiatric disorder is due to his service-connected right shoulder disability.

CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310.

2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310.

3. The criteria for service connection for an acquired psychiatric disorder are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from September 1993 to July 1994.

These matters are on appeal from an April 2021 rating decision by a Department of Veterans Affairs (VA) regional office (RO).

In the May 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held in May 2025. A transcript has been associated with the file.

Therefore, the Board may only consider the evidence of record at the time of the April 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, 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.

However, because the Board is remanding the claims of entitlement to service connection for sleep apnea, bilateral wrist disabilities, headaches, neck, left shoulder, bilateral elbow, bilateral knee, or right quadriceps disabilities any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a
previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)(b) (2016), Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

Service connection can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be 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. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id.

While in service, the Veteran's military occupational specialty (MOS) was that of infantryman. The Veteran reported that he had hearing loss due to his time in service and that he did not wear hearing protection all the time. The Veteran also reported he had ringing in his ears ever since his time in service and the ringing had continued to the present day. The Veteran said he did not know specifically what caused his elbow conditions but that they did not look the way they do now before his time in service. The Veteran did not know what his diagnosis was but reported pain and deformity. The Veteran thought his elbow conditions may be secondary to his back and shoulder conditions, but that while in service, he never went to sick call for his elbow conditions. The Veteran also believed his mental health condition was due to his right shoulder disability.

The Veteran noted that he was diagnosed with sleep apnea around 2009 and that he had trouble sleeping while in service with his symptoms continuing to the present day. The Veteran went to a private treatment facility for his sleep apnea and has a CPAP machine. The Veteran said his left shoulder disability is secondary to his service-connected right shoulder disability because he overcompensated. The Veteran did not go to sick call for his knees while in service but believed they are due to his time in service from doing marches with heavy packs and other duties related to being in the infantry. The Veteran also said he had a compensated gait because of his back injury. The Veteran reported having knee conditions in service that continued to the present day. The Veteran said he had neck pain that shot from his skull down to his left shoulder and middle back. The Veteran said he had this pain since boot camp. The Veteran reported that he believed his neck pain could also be due to his back and right shoulder conditions. The Veteran stated he had tendonitis in both arms and hands and believes his wrist conditions are secondary to his shoulder condition. The Veteran said his right quadriceps condition was not due to a specific event but as a result of his back condition. The Veteran reported having headaches in service and that he still has headaches now. The Veteran said his headaches were triggered when he was having the most severe neck and back pain and also secondary to his right shoulder. See May 2025 Hearing Transcript.

In March 2021, a co-worker submitted a statement saying he noticed while on surveillance jobs with the Veteran, if the Veteran sat for too long, he would be in pain due to
neck pain could also be due to his back and right shoulder conditions. The Veteran stated he had tendonitis in both arms and hands and believes his wrist conditions are secondary to his shoulder condition. The Veteran said his right quadriceps condition was not due to a specific event but as a result of his back condition. The Veteran reported having headaches in service and that he still has headaches now. The Veteran said his headaches were triggered when he was having the most severe neck and back pain and also secondary to his right shoulder. See May 2025 Hearing Transcript.

In March 2021, a co-worker submitted a statement saying he noticed while on surveillance jobs with the Veteran, if the Veteran sat for too long, he would be in pain due to his right hip, thigh, and calf that started while he was in bootcamp. Years later, the Veteran was using a standing desk because he still had difficulty sitting.

Entitlement to service connection for bilateral hearing loss and tinnitus

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is 0 to 20 decibels.

The Veteran, as a layperson, may be competent on a variety of matters concerning the nature and cause of his disability. Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Court has found a lay person competent to identify tinnitus which is a disorder that can be identified based on lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran is competent to report that he was exposed to loud noise during service. See generally Charles v. Principi, 16 Vet. App. 370, 374 (2002). Once the threshold of competency is met, the Board must consider how much of a tendency a piece of evidence has to support a finding of the fact in contention. Not all competent evidence is of equal value.

The Veteran's military occupational specialty (MOS) of trainee had a moderate probability for hazardous noise exposure.

The Veteran had an examination for his hearing loss and tinnitus in March 2021. The examiner conducted an examination of the Veteran in person, reviewed his file, and reported the Veteran did not have hearing loss for VA purposes. The examiner opined that the Veteran's hearing loss did not meet VA standards and therefore, it was less likely than not that the Veteran's hearing loss was due to his time in service.

The examiner indicated that the Veteran was diagnosed with tinnitus with the Veteran reporting an onset in service that continued to present day. The examiner offered a negative etiology opinion, saying "tinnitus is less likely as not associated with hearing loss due to the significant difference in the time of onset of hearing loss and tinnitus, which would indicate separate etiologies." However, tinnitus, unlike hearing loss, can be found based on lay statements alone. Granting the benefit of the doubt to the Veteran, the Board finds his tinnitus began in service and has continued to present day. The Board will grant this claim.

Conversely, hearing loss is not something that can be diagnosed by lay statements alone. The Board has reviewed the Veteran's entire file and does not find diagnosed hearing loss for VA purposes. Without a diagnosed disability, service connection cannot be granted. Therefore, the claim for bilateral hearing loss is denied.

Entitlement to service connection for an acquired psychiatric disorder

In May 2025, the Veteran submitted a private examination and opinion. The examiner diagnosed the Veteran with depressive disorder due to his service connected right shoulder disability. The examiner based his opinion on a clinical interview with the Veteran and a review of the decision letter. The examiner indicated the Veteran had a diagnosis of depressive disorder due to his right shoulder disability. The examiner discussed a brief family and education history as well as the Veteran's time in service. The examiner also listed the many mental health symptoms the Veteran suffered from. The examiner concluded it was therefore more likely than not that the Veteran suffered from depressive disorder. The examiner then stated, "this condition resulted from service connected right shoulder" disability. Resolving all doubt in favor of the Veteran, the Board will grant the claim.

REASONS FOR REM
and opinion. The examiner diagnosed the Veteran with depressive disorder due to his service connected right shoulder disability. The examiner based his opinion on a clinical interview with the Veteran and a review of the decision letter. The examiner indicated the Veteran had a diagnosis of depressive disorder due to his right shoulder disability. The examiner discussed a brief family and education history as well as the Veteran's time in service. The examiner also listed the many mental health symptoms the Veteran suffered from. The examiner concluded it was therefore more likely than not that the Veteran suffered from depressive disorder. The examiner then stated, "this condition resulted from service connected right shoulder" disability. Resolving all doubt in favor of the Veteran, the Board will grant the claim.

REASONS FOR REMAND

Entitlement to service connection obstructive sleep apnea

Entitlement to service connection for a right wrist disability

Entitlement to service connection for a left wrist disability

Entitlement to service connection for chronic headache/migraine

Entitlement to service connection for a neck disability

Entitlement to service connection for a left shoulder disability

Entitlement to service connection for a right elbow disability

Entitlement to service connection for a left elbow disability

Entitlement to service connection for a right knee disability

Entitlement to service connection for a left knee disability

Entitlement to service connection for a right quadriceps disability

The Board finds a pre-decisional duty to assist error in the above-listed claims. The Veteran indicated the above-listed disabilities commenced in 1994. See e.g., VA 21-5263Z. Given that the Veteran may have these disabilities that are related to service, VA examinations should have been performed prior to the rating decision on appeal.

On remand, the RO should conduct the appropriate examinations.

The matters are REMANDED for the following actions:

1. Schedule the Veteran for an examination for his 1) sleep apnea, 2) bilateral wrist disability, 3) chronic headache/migraines, 4) neck disability, 5) left shoulder disability, 6) bilateral elbow disability, 7) bilateral knee disability, and 8) right quadriceps disability. For each claimed disability, the examiner should opine as to the following:

(a) Does the Veteran have a diagnosis of his claimed disability?

(b) If the Veteran does not have a diagnosed disability, is it at least as likely as not that any pain reaches the level of functional impairment of earning capacity? If so, describe the impairment caused.

The examiner is reminded that for VA purposes, pain or other symptomatology causing functional impairment constitutes a disability, even in the absence of a distinct diagnosis.

(d) Whether it is at least as likely as not the Veteran's disability is caused by any of his service connected disabilities, to include his right shoulder and psychiatric disabilities.

(e) Whether it is at least as likely as not the Veteran's disability was aggravated by any of his service connected disabilities.

NOTE: Aggravation in this context does not mean a permanent worsening. Any incremental or temporary worsening constitutes aggravation.

*The examiner must consider and take into account the Veteran's lay statements about what happened to him while in service and his current symptoms.

*The examiner may not rely solely on a lack of treatment as a reason for a negative etiology opinion.

S. Merrick

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A. Snoparsky, 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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