TINNITUS

THOMAS L. ENGLISH · 2026 · Case ID: A26038710

DENIED

Summary

The Veteran served on active duty from November 2000 to May 2002, with subsequent National Guard service. The Veteran appealed a February 2020 rating decision concerning three issues: an earlier effective date for tinnitus, service connection for a neck disorder, and service connection for bilateral hearing loss. The Board denied all three claims. For the earlier effective date claim, the Board found the September 6, 2019 Intent to File date to be the correct effective date, as no earlier claim was filed and the Veteran's arguments at the hearing were confused and lacked specific rationale for an earlier date. Regarding the neck disorder, the Board acknowledged a current diagnosis from private treatment records and the Veteran's testimony about in-service aggravation from wearing heavy vests. However, the Board found no in-service treatment or complaints in the service treatment records, and the private medical opinion was deemed conclusory and unpersuasive. The Board also noted a duty to assist error regarding the lack of a VA examination for this issue, but found no pre-decisional error as the Veteran's theory of entitlement was not clearly presented until the Board hearing. For bilateral hearing loss, the Board found no current disability to a degree recognized by VA, as both the February 2020 VA examination and the October 2024 private audiogram did not meet the regulatory thresholds for impaired hearing. The Board also addressed a challenge to the VA examiner's competency but found no pre-decisional duty to assist error. The Board denied all claims, finding the evidence persuasively weighed against the Veteran's claims and the benefit of the doubt doctrine inapplicable.

Rationale

Intent to File date of September 6, 2019 is the correct effective date.; No earlier claim filed.; Arguments for earlier effective date lacked specific rationale.

Special Benefit

EARLIER EFFECTIVE DATE

Docket No.

201112-121930

Full Decision Text

Citation Nr: A26038710
Decision Date: 04/24/26 Archive Date: 04/24/26

DOCKET NO. 201112-121930
DATE: April 24, 2026

ORDER

Entitlement to an earlier effective date prior to September 6, 2019 for service-connected tinnitus is denied.

Entitlement to service connection for a neck disorder is denied.

Entitlement to service connection for bilateral hearing loss is denied.

FINDINGS OF FACT

1. The competent and credible evidence of record persuasively establishes a finding that the Veteran submitted an Intent to File on September 6, 2019, followed by his application for service connection in December 2019.

2. The competent and credible evidence of record does not persuasively establish a finding that the neck disorder is related to active-duty service.

3. The competent and credible evidence of record persuasively establishes a finding that there is not a current hearing loss disability.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an earlier effective date prior to September 6, 2019 for service-connected tinnitus have not been met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. §§ 3.151, 3.155, 3157, 3.400.

2. The criteria for entitlement to service connection for a neck disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 2000 to May 2002, with additional National Guard service. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2020 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In the November 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held in September 2024. Therefore, the Board may only consider the evidence of record at the time of the February 2020 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.

1. Entitlement to an earlier effective date prior to September 6, 2019 for service-connected tinnitus

Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110(a). If a claim is filed within one year after separation from service, service connection will be effective as of the day after separation. 38 C.F.R. § 3.400(b)(2).

Prior to March 24, 2015, a claim was "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). An informal claim is "[a]ny communication or action indicating intent to apply for one or more benefits." 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits).

For claims or appeals filed on or after March 24, 2015, a claim for benefits must be submitted on a standardized form. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686 (Sept. 25, 2014) (eff. Mar. 24, 2015). Claims or appeals pending before VA on that date are to be decided based on the regulations as they existed prior to the amendment. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686.

With regard to the date of entitlement, the term date entitlement arose is the date when the claimant met the requirements for the benefits sought, on a facts found basis. 38 U.S.C. § 5110(a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). These facts found include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). However, the date entitlement arose is not the date that the RO receives the evidence, but the date to which that evidence refers. McGrath, 14 Vet. App. at 35.

Additionally, VA may recognize the date of receipt of an intent to file as the date of claim so long as VA receives the properly completed claim form within a year. 38 C.F.R. § 3.155(b). An intent to file a claim must identify the general benefit but need not identify the specific benefit claimed or any medical condition on which the claim is based. 38 C.F.R. § 3.155(b)(2). An intent to file a claim received from a service organization, an attorney, or agent indicating a claimant's intent to file a claim may not be accepted if power of attorney was not executed at the time the communication was written. 38 C.F.R. § 3.155(b)(3).

Discussion

The Veteran submitted an Intent to File on September 6, 2019, and his application for service connection in December 2019, within one year of that Intent to File. The February 2020 rating decision on appeal granted an effective date of September 6, 2019, the date of the Intent to File. Although the evidence of record suggests that the Veteran had tinnitus prior to this date, as indicated above, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. Here, the Intent to File was later, and is the appropriate effective date. The Veteran filed no earlier claim for this issue.

The Board acknowledges that at the Hearing, the Veteran and his representative both confused the issue on appeal,
his application for service connection in December 2019, within one year of that Intent to File. The February 2020 rating decision on appeal granted an effective date of September 6, 2019, the date of the Intent to File. Although the evidence of record suggests that the Veteran had tinnitus prior to this date, as indicated above, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. Here, the Intent to File was later, and is the appropriate effective date. The Veteran filed no earlier claim for this issue.

The Board acknowledges that at the Hearing, the Veteran and his representative both confused the issue on appeal, and addressed it as an increased rating, for which the undersigned VLJ explained that the service-connected tinnitus is in receipt of a 10 percent evaluation, the highest available schedular rating. In a May 2023 letter, the representative indicated that the Veteran, "suffers from an earlier effective date for tinnitus." In the December 2024 post hearing memorandum, they recharacterized the issue as an earlier effective date for the tinnitus, but did not offer any rationale or argument for why an earlier effective date should be granted.

Accordingly, the criteria for the claim of entitlement to an earlier effective date prior to September 6, 2019 have not been met, and the appeal is denied.

SERVICE CONNECTION

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).

Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

2. Entitlement to service connection for a neck disorder

The Veteran alleges that the neck disorder began during service and has existed since that time.

First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran submitted June 2017 private treatment records (PTRs) which noted spinal stenosis with neural foraminal compromise, and mild tenderness of the lower cervical spine with chronic cervical radiculopathy. Following the Board hearing, the Veteran submitted October 2024 PTRs which indicated a diagnosis of cervical spinal osteoarthritis. Accordingly, the first element of service connection is met.

Second, the Board finds that there was an in-service event, injury or disease. See Holton, 557 F.3d at 136
First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran submitted June 2017 private treatment records (PTRs) which noted spinal stenosis with neural foraminal compromise, and mild tenderness of the lower cervical spine with chronic cervical radiculopathy. Following the Board hearing, the Veteran submitted October 2024 PTRs which indicated a diagnosis of cervical spinal osteoarthritis. Accordingly, the first element of service connection is met.

Second, the Board finds that there was an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). A careful review of the Veteran's service treatment records (STRs) finds no complaints of or treatment for any neck condition. On occasional reports of medical history, the Veteran did endorse recurrent back pain; however, upon separation from active duty in February 2002, he clarified that this manifested as lower back pain. He is currently service-connected for degenerative disc disease of the thoracolumbar spine.

Prior to the Board hearing, the Veteran raised no specific theory of entitlement beyond a broad assertion that the neck disorder is related to service by mere nature of submitting his service connection claim. On that application, he indicated that the condition began or worsened in 2013, more than a decade after separation from active-duty service. At the September 2024 Board hearing, the Veteran testified that the neck condition is related to wearing heavy Kevlar vests while training. He asserted that he began to notice tingling in his fingers around 2002, and that he experienced stiffness in his neck during service, but that he did not want to report it as he was a new recruit.

The Board finds the Veteran's statements competent as they are capable of lay observation. 38?U.S.C. §?1154(a); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the probative value of a witness statement may be affected by inconsistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Accordingly, the second element of service connection is met.

Third, the Board finds that the evidence of record does not support a finding that the neck disorder is related to active service.

The Veteran submitted an October 2024 private medical opinion in support of his claim. This examiner indicated that the Veteran had a causal nexus to his cervical spinal condition and trauma occurring during marine corps training, and exercises.

The Board affords this opinion low probative value as it is conclusory without any supporting rationale. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Notably, the examiner in this opinion wrote primarily about their reasons for why service connection should be granted for the already service-connected thoracolumbar spine, and knees. They also indicated that the cervical spine should be rated at 60 percent, which would be premature for the issue on appeal. The general rating formula for diseases and injuries of the spine does not include a schedular 60 percent evaluation, and it is unclear where this examiner derived that number. 38 C.F.R. § 4.124a

The Board acknowledges that VA did not afford the Veteran an opportunity to attend an examination for this issue. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim, which includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that there is a low threshold and requires only that the evidence "indicates" 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).

However, as indicated above, prior to the Board hearing, the Veteran offered no theory of entitlement why service connection should be granted, specifically he lacked the second element of service connection. On his application, he reported that the condition began or worsened more than a decade following separation from service. The June 2017
3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that there is a low threshold and requires only that the evidence "indicates" 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).

However, as indicated above, prior to the Board hearing, the Veteran offered no theory of entitlement why service connection should be granted, specifically he lacked the second element of service connection. On his application, he reported that the condition began or worsened more than a decade following separation from service. The June 2017 PTRs which noted a diagnosis of the neck also included the Veteran's report that the neck pain began just two months prior. The scant evidence that he submitted prior to the rating decision on appeal in support of his claim suggested that the condition began well after service. And although the Board hearing testimony finally does offer the required theory of entitlement, that does not constitute a pre-decisional duty to assist error to support a remand for further development.

The duty to assist a claimant is not a one-way street, and in the instant case, the Veteran must cooperate to the full extent in the development of the claim. See Wood v. Derwinski, 1 Vet. App. 406 (1991) (noting that VA's duty to assist is a two-way street, and the Veteran cannot wait passively in those situations where their assistance to VA is necessary).

The Board acknowledges the Veteran's statements that the neck disorder is related to active-duty service; however, he is not competent to opine on the etiology of condition as the record does not show he possesses the requisite medical training, expertise, or credentials. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

The Board has also considered whether presumptive service connection can be established where there is evidence of continuity of symptomology of a chronic condition since service. See 38 C.F.R. § 3.309. However, the record of evidence does not show a current diagnosis until many years following separation from service.

Accordingly, the criteria for the claim of entitlement to service connection for a neck disorder, and the appeal is denied.

3. Entitlement to service connection for bilateral hearing loss

The Veteran alleges that he has bilateral hearing loss which began during service and has existed since that time.

Unfortunately, service connection is not warranted at this time as there is no evidence of record to support a finding that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d).

The Veteran underwent a VA examination in February 2020 where the examiner found that he had normal hearing. For VA purposes, impaired hearing is considered a disability for the purpose of applying the laws administered by VA 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 threshold for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 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.

At the February 2020 VA examination, pure tone thresholds, in decibels, were as follows:

HERTZ

500 1000 2000 3000 4000 CNC

RIGHT 10 10 5 15 20 100%

LEFT 10 10 10 10 25 100%

The Veteran submitted an October 2024 private audiogram in support of his claim, which showed pure tone thresholds, in decibels, were as follows:

HERTZ

500 1000 2000 3000 4000 CNC

RIGHT 10 10 15 20 30 100%

LEFT 10 10 15 25 35 96%

Auditory thresholds were not above 40 decibels at any frequency under VA regulation on either examination. Only the October 2024 audiogram demonstrated frequencies at greater than 26 hertz, but only at one frequency in each ear. And speech recognition scores were not less than 94 percent at either examination.

RIGHT 10 10 15 20 30 100%

LEFT 10 10 15 25 35 96%

The Board acknowledges the Veteran's statements that he has some difficulty hearing, and comparing his hearing thresholds from his active-duty service to the present day does suggest that he has had some loss in hearing acuity; however, it is not to the degree that VA recognizes as a disability. He is not competent to opine on a diagnosis as the record does not show he possesses the requisite medical training, expertise, or credentials. See Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007).

The Board also acknowledges that the Veteran's representative has raised a question of the competency of the VA examiner who performed the February 2020 examination, although they did not raise any particular objection to the findings on that examination.

Under Francway v. Wilkie, 930 F.3d 1377 (Fed. Cir. 2019), a veteran must raise a challenge to the competency of the medical examiner in the first instance. However, pursuant to the provisions of the AMA, the Board reviews the record only to correct pre-decisional duty to assist errors. 38 C.F.R. § 20.802(a). In this case, the AMA rating decision on appeal was issued in February 2020, with an examination pertaining to the issue on appeal occurring prior to the rating decision. Because the request was received after the February 2020 rating decision, the failure to provide the VA examiner's qualifications to the Veteran does not represent a pre-decisional duty to assist error. The duty does not attach at the Board level in an AMA appeal. 38 C.F.R. § 3.159(c). However, in an attempt to assist the representative in their Francway challenge made after the AMA rating decision on appeal, the request was sent to the Board's FOIA office by way of the only process available. Accordingly, a remand based on this challenge is not appropriate.

Importantly, VA regulation mandates that examinations for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85(a). The February 2020 examination indicates that the examiner was an audiologist. Noticeably, the October 2024 private examination does not include any information regarding that examiner's qualifications, including whether they were an audiologist.

Accordingly, the criteria for the claim of entitlement to service connection for bilateral hearing loss have not been met, and the appeal is denied.

In reaching this decision the Board considered the doctrine of reasonable doubt. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence persuasively favors the claim or is in approximate balance, with the Veteran prevailing in either event, or whether the evidence persuasively weighs against the claim, in which case the claim is denied. In other words, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (2021). Here, however, as the evidence is persuasively against the claim and the positive and negative evidence is not in approximate balance, the doctrine is not for application. Id.

Thomas L. English

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Rogos, J.

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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