TINNITUS

Summary

The Veteran served from June 2003 to July 2006, with a MOS of ship's serviceman, which involved routine noise exposure. The Veteran appeals the denial of service connection for tinnitus and a higher rating for an acquired psychiatric disorder (adjustment disorder with mixed anxiety and depressed mood). The Board granted service connection for tinnitus, finding it related to in-service noise exposure based on the Veteran's consistent lay statements and service treatment records noting noise exposure. The Board found the VA examiner's opinion inadequate as it questioned the tinnitus diagnosis based on infrequent symptoms and failed to address secondary service connection or TERA. The Board also denied the claim for a higher rating for the psychiatric disorder because the Veteran failed to report for a scheduled VA examination without good cause, which is a failure to cooperate with the duty to assist. The case is remanded for further development regarding a skin disability claim, which was claimed as secondary to the psychiatric disorder or due to TERA. The VA examiner's opinion on the skin condition was found inadequate for failing to address secondary service connection and TERA, and for speculative conclusions regarding aggravation and etiology.

Rationale

Service treatment records noted routine noise exposure; Veteran's MOS consistent with noise exposure; Lay evidence competent and credible; Resolving doubt in Veteran's favor

Full Decision Text

Citation Nr: A26038188
Decision Date: 04/23/26	Archive Date: 04/23/26

DOCKET NO. 250602-552412
DATE: April 23, 2026

ORDER

Entitlement to service connection for tinnitus is granted.

Entitlement to a rating higher than 70 percent for an acquired psychiatric disorder diagnosed as chronic adjustment disorder with mixed anxiety and depressed mood is denied.

REMANDED

Entitlement to service connection for a skin disability (claimed as contact dermatitis), to include as secondary to a service-connected acquired psychiatric disorder or, in the alternative, as due to an in-service toxic exposure risk activity (TERA), is remanded.

FINDINGS OF FACT

1. The evidence is at least equally balanced that the Veteran's tinnitus is etiologically related to the noise trauma he sustained in active duty. 

2. The Veteran, without good cause, failed to report to a January 2025 VA examination related to his claim seeking a rating higher than 70 percent for an acquired psychiatric disorder diagnosed as adjustment disorder with mixed anxiety and depressed mood.

CONCLUSIONS OF LAW

1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 

2. The claim of entitlement to a rating greater than 70 percent for an acquired psychiatric disorder diagnosed as adjustment disorder with mixed anxiety and depressed mood is denied as a matter of law. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.655(b). 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran has confirmed military service from June 2003 to July 2006.

In January 2025, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested review of prior rating decisions based on new and relevant evidence. In March 2025, the agency of original jurisdiction (AOJ) issued the rating decision on appeal, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision. Therefore, the Board may only consider the evidence of record at the time of the decision on appeal [and any evidence submitted during an applicable evidentiary window

In the timely filed June 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran elected the Direct Review option. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301.

The Board notes that the AOJ requested that the Veteran submit any relevant private treatment records or submit information so that VA can assist him in obtaining private treatment records. VA requested records for which the Veteran submitted a proper release. The duty to assist is not a one-way street. If a Veteran requires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

The standard set forth in 38 C.F.R. § 3.103(c)(2)(iii) only permits constructive receipt of Veterans Health Administration (VHA) records that not only existed prior to the issuance of the AOJ decision on appeal, but also for which the claimant furnished sufficient information to make the Veterans Benefits Administration (VBA) aware of the existence of those records. Thus, the Board's consideration of VHA records is limited to the same. Here, the Board finds that VA treatment records were obtained and reviewed consistent with 38 C.F.R. § 3.103(c)(2)(iii) and the AMA framework.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease initially diagnosed after service when all the evidence,
 furnished sufficient information to make the Veterans Benefits Administration (VBA) aware of the existence of those records. Thus, the Board's consideration of VHA records is limited to the same. Here, the Board finds that VA treatment records were obtained and reviewed consistent with 38 C.F.R. § 3.103(c)(2)(iii) and the AMA framework.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). There are three requirements to establish service connection: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence, the claimant must be afforded the benefit of the doubt. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

1. Entitlement to service connection for tinnitus is granted.

The Veteran contends that his tinnitus is due to in-service noise exposure. At a November 2021 VA Hearing Loss and Tinnitus VA examination, the Veteran reported that his tinnitus started while working on the flight deck of an oiler supply ship and became worse over time.

The March 2025 rating decision on appeal found that the Veteran has been diagnosed with tinnitus and his Veteran's military occupational specialty (MOS) of ship's serviceman is consistent with a probability of noise exposure. The Board is bound by these favorable findings, and the first two elements of service connection are met. 

Regarding nexus, in a January 2025 addendum medical opinion a VA examiner opined that the Veteran did not have tinnitus because although the November 2021 VA examiner diagnosed it, the Veteran's reports of ringing a few times a month lasting less than a minute did not meet the criteria for a diagnosis of tinnitus. 

Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007), (holding that "whether lay evidence is competent and sufficient in a particular case is a factual issue"). Tinnitus is a condition for which the Veteran is uniquely situated to competently identify and report on the onset and duration of this condition.

The Board notes that a June 2003 audiogram in the Veteran's service treatment records noted that he was routinely noise exposed as a result of his MOS. The Veteran's lay statements of record including during an in person interview with the November 2021 VA examiner consistently indicated onset of tinnitus during active duty and continuity of symptomatology since then. Regarding the Veteran's statement that he experienced tinnitus symptoms during service and since separation of service, the Board finds it both competent and credible.

In light of the foregoing, the Board finds that the Veteran's current tinnitus is due to his in-service noise exposure. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for tinnitus have been met and entitlement to service connection is warranted. The appeal is granted.

2. Entitlement to a rating higher than 70 percent for an acquired psychiatric disorder diagnosed as adjustment disorder with mixed anxiety and depressed mood is denied.

The Veteran was scheduled for a VA examination to determine the current severity of his service-connected acquired psychiatric disorder in January 2025. The Veteran failed to report to the scheduled examination. Neither he nor his attorney have offered good cause for missing the examination, nor have they requested that the examination be rescheduled. The March 2025 rating decision on appeal, which was provided to both the representative and the Veteran, indicated that the claim was being denied due to the Veteran not appearing at the scheduled examination and not providing good
innitus have been met and entitlement to service connection is warranted. The appeal is granted.

2. Entitlement to a rating higher than 70 percent for an acquired psychiatric disorder diagnosed as adjustment disorder with mixed anxiety and depressed mood is denied.

The Veteran was scheduled for a VA examination to determine the current severity of his service-connected acquired psychiatric disorder in January 2025. The Veteran failed to report to the scheduled examination. Neither he nor his attorney have offered good cause for missing the examination, nor have they requested that the examination be rescheduled. The March 2025 rating decision on appeal, which was provided to both the representative and the Veteran, indicated that the claim was being denied due to the Veteran not appearing at the scheduled examination and not providing good cause or willingness to report for another examination. There has been no response.

Under 38 C.F.R. §§ 3.326(a), individuals for whom examinations have been authorized and scheduled are required to report for such examinations. Further, the provisions of 38 C.F.R. §§ 3.655(a) provide that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. However, when the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. §§ 3.655(b).

As no good cause has been shown for the Veteran's failure to appear for the VA medical examination scheduled in January 2025, his claim for a higher disability rating for an acquired psychiatric disorder must be denied pursuant to 38 C.F.R. §§ 3.655 (b) as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994) (when the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law).

REASONS FOR REMAND

1. Entitlement to service connection for a skin disability (claimed as contact dermatitis), to include as secondary to a service-connected acquired psychiatric disorder or, in the alternative, as due to an in-service TERA, is remanded.

The matters are REMANDED for the following action:

1. BACKGROUND INFORMATION FOR THE REGIONAL OFFICE (RO) ADJUDICATOR: The March 2025 rating decision identified the following favorable findings of fact: Service treatment records document skin condition complaints and treatment to include eczema, tinea pedis, and folliculitis. The Veteran has been diagnosed with a disability. The VA Skin Diseases Disability Benefits Questionnaire (DBQ) dated October 17, 2023, shows a diagnosis of spongiotic psoriasiform dermatitis. Participation in a toxic exposure risk activity (TERA) is conceded. The Toxic Exposure Risk Activity (TERA) Memorandum dated January 21, 2025, confirmed the Veteran participated in a TERA during service in Southwest Asia with specific exposures to airborne Burn Pit/Fine particulate matter and asbestos. 

The Veteran's enlistment examination dated March 15, 2002, was silent for any preexisting skin conditions, and he is entitled to the presumption of soundness. In January 2025, VA sought addendum medical opinions pertaining to the Veteran's skin conditions claim based on direct service connection, service connection caused or aggravated secondarily by the Veteran's service - connected acquired psychiatric disorder, and service connection based on TERA.

The January 2025 VA examiner concluded that the Veteran's skin condition was less likely than not incurred in or caused by active duty service. The rationale was that contact dermatitis is caused by exposure to a substance that irritates skin or triggers and allergic reaction. The substance could be one of thousands of known allergens and irritants. Often people have irritant and allergic reactions at the same time. Some people react to strong irritants after a single exposure. Others may develop a rash after repeated exposures to even mild irritants such as soap and water. 

The January 2025 VA examiner did not offer a medical opinion based on secondary service connection or TERA. 

The January 2025 VA examiner stated that they could not determine a baseline level of severity of the Veteran's skin condition but regardless opined that it was less likely than not aggravated beyond its natural progression by the Veteran acquired psychiatric disorder. The rationale for the examiner's opinion was that per the Mayo Clinic contact dermatitis is a condition and if the Veteran's contact dermatitis was aggravated by active duty it would have been
 people have irritant and allergic reactions at the same time. Some people react to strong irritants after a single exposure. Others may develop a rash after repeated exposures to even mild irritants such as soap and water. 

The January 2025 VA examiner did not offer a medical opinion based on secondary service connection or TERA. 

The January 2025 VA examiner stated that they could not determine a baseline level of severity of the Veteran's skin condition but regardless opined that it was less likely than not aggravated beyond its natural progression by the Veteran acquired psychiatric disorder. The rationale for the examiner's opinion was that per the Mayo Clinic contact dermatitis is a condition and if the Veteran's contact dermatitis was aggravated by active duty it would have been resolved after active duty as there was no longer exposure to the allergen. 

The Board finds this opinion is inadequate for rating purposes. The examiner's opinions are incomplete, and based upon speculative conclusions including absence of evidence. Additionally, the examiner did not apply the proper standard in evaluating whether the Veteran's skin condition is associated with his TERA during active duty. Accordingly, remand to cure a pre decisional duty to assist error and afford the Veteran an adequate medical examination and opinion is warranted. 

THE REMAND DIRECTIVES FOLLOW:

2. Schedule a Skin Diseases examination by an examiner for the purpose of providing opinions on the nature and etiology of the Veteran's skin conditions, to include dermatitis. The examiner is asked to address the following questions:

(a.) Is any skin disability diagnosed related to the Veteran's service? Why or why not? 

(b.) Is any skin disability diagnosed at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) caused by the Veteran's service connected acquired psychiatric disorder? Why or why not?

(c.) Is any skin disability diagnosed at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) aggravated by the Veteran's service connected acquired psychiatric disorder? Why or why not? For the purposes of secondary service connection, the examiner is advised that aggravation is defined as "any increase in disability." See Allen v. Brown, 7 Vet. App. 439 (1995).

(d.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's current skin disability is etiologically related to the synergistic, combined effect of all conceded toxic exposure risk activities (TERA)? Why or why not?

The Board notes that the claims folder must be provided to and reviewed by the examiner for all post-remand cases per AOJ policy. See VBA Manual M21-1, Part IV.i.2.A.8.b. Thus, the examiner must specifically note that the claims folder was received and reviewed in the body of the examination report.

The medical opinions must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record. Medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.

The examiner is informed by the Board that a positive opinion indicating a nexus to service does not require certainty. Rather, if the weight of the evidence is in approximate balance for and against a nexus to service, the examiner should make a finding favorable to the Veteran.

The examiner is informed by the Board that chronicity is not required to find a nexus to service or for service connection to be granted.

All requested opinions must be supported with a rationale based on generally accepted medical principles and the examiner's medical training and expertise.

3. Thereafter, the AOJ must readjudicate the Veteran's appealed issue in light of the totality of evidence of record.  If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and his private 

attorney with a copy of the readjudication and afford them an appropriate period to respond.

 

 

Scott W. Dale

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Alexander

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.