Case A26038756

Summary

The Veteran served in the Navy from January 1965 to March 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from January, February, and May 2025 rating decisions, following a Higher-Level Review (HLR). The Veteran initially appealed decisions concerning entitlement to service connection for bilateral hearing loss, a back condition, and tinnitus. However, the Veteran subsequently withdrew the issue of entitlement to service connection for bilateral hearing loss, leading to its dismissal without prejudice. The Board denied service connection for the back condition, finding the persuasive weight of the evidence against the claim. While the agency of original jurisdiction (AOJ) conceded a current diagnosis and in-service event for the back condition, the Board found the Veteran's lay statements regarding continuous symptoms since service to be inconsistent and not credible, particularly given the lack of contemporaneous service treatment record findings and the significant time lapse before symptom reporting. A VA examination opined it was less likely than not that the current vertebral fracture and lumbosacral strain were incurred in service, attributing the fracture more likely to a later motorcycle accident. A private chiropractor's opinion was given minimal probative value due to inconsistencies with service records and failure to consider all relevant facts. For tinnitus, the AOJ conceded a current diagnosis and in-service event. However, service treatment records were negative for tinnitus symptoms, with the Veteran reporting onset in 2000, significantly after service. Two VA examinations opined it was less likely than not that tinnitus was related to service, citing lack of in-service records, post-service noise exposure, and the Veteran's MOS having low probability of hazardous noise exposure. The Board found no positive opinions linking tinnitus to service and denied the claim.

Full Decision Text

Citation Nr: A26038756
Decision Date: 04/27/26	Archive Date: 04/27/26

DOCKET NO. 250805-562599
DATE: April 27, 2026

ORDER

Entitlement to service connection for bilateral hearing loss is dismissed without prejudice.

Entitlement to service connection for a back condition is denied.

Entitlement to service connection for tinnitus is denied.

FINDINGS OF FACT

1. In a correspondence received in January 2026, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the issue of entitlement to service connection for hearing loss was requested.

2. The persuasive weight of the evidence indicates that the Veteran's back condition is not etiologically related to active service.

3. The persuasive weight of the evidence indicates that the Veteran's tinnitus is not etiologically related to active service.

CONCLUSIONS OF LAW

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

2. The criteria for entitlement to service connection for a back condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.

3. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service in the Navy from January 1965 to March 1970. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from January, February, and May 2025 rating decisions. In February 2025, the Veteran submitted a Higher-Level Review (HLR), and requested review of January and February 2025 decisions. In May 2025, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior January and February 2025 rating decisions.  

In the August 2025 VA Form 10182, Notice of Disagreement, the Veteran elected the Hearing docket. On November 20, 2025, the Veteran, through his representative, withdrew the hearing request.

Therefore, the Board may only consider the evidence of record at the time of the January and February AOJ decisions on appeal for the respective issue, as well as any evidence submitted by the Veteran [or representative] within 90 days following receipt of the withdrawal of the hearing request. 38 C.F.R. § 20.302(b). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to receipt of the withdrawal, or (2) more than 90 days following receipt of the withdrawal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(b), 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 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 claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

Dismissal of Claim

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. 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 the appellant or by his or her authorized representative. 38 C.F.R. § 20.205.

1. Entitlement to service for bilateral hearing loss.

In the present case, the Veteran has withdrawn the issue of entitlement to service connection for hearing loss. Specifically, in a correspondence dated December 17, 2025, and received in January 2026, the Veteran stated he wished to withdraw the issue of bilateral hearing loss. The Board finds that this correspondence included the Veteran's name, his file number, and a satisfactory statement that the appeal is withdrawn. Hence
 in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205.  Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205.

1. Entitlement to service for bilateral hearing loss.

In the present case, the Veteran has withdrawn the issue of entitlement to service connection for hearing loss. Specifically, in a correspondence dated December 17, 2025, and received in January 2026, the Veteran stated he wished to withdraw the issue of bilateral hearing loss. The Board finds that this correspondence included the Veteran's name, his file number, and a satisfactory statement that the appeal is withdrawn. Hence, there remain no allegations of errors of fact or law for appellate consideration, and the appeal is dismissed without prejudice.

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. Generally, the evidence 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 (nexus). Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

2. Entitlement to service connection for a back condition.

The Veteran seeks entitlement to service connection for a back condition. He contends he injured his back while unloading materials from an airplane during active service, and has experienced back pain since that time. 

After a review of the evidence of record, the Board finds service connection is not warranted. 

Initially, the Board observes that in the rating decision on appeal the AOJ made favorable findings, including that the Veteran had a current diagnosis of lumbosacral strain and vertebral fracture, and that the evidence showed an event during active service. Under the AMA, the Board is bound by favorable findings made by the AOJ in the absence of evidence of clear and unmistakable error. 38 C.F.R. § 3.104(c). As such, a current diagnosis and in-service event are conceded. 

Next, the service treatment records show a report of back pain in February 1967 due to being hit by a motorcycle a month before.  However, this appears to have resolved as there are no follow-up visits or reports of recurrent pain in the following three years. In January 1970, the Veteran reported pain in his back after lifting a heavy object, however, the physician noted no significant injury and an examination of the back was normal with full range of motion noted without pain. The Veteran reported back pain several times in the following days, however, the treating physician noted in a February 1970 record that he suspected malingering. The medical evidence supports the physician's suspicion. Notably, while a later February 1970 record shows the Veteran claimed to have exacerbation of back pain which rendered him incapable of working, the treating physician noted no positive physical findings of a back problem at any visit, and noted gait and posture were normal, no tenderness or spasm, full range of motion with no resistance to movement, strength and reflexes within normal limits, and no sensory deficits. The treating physician noted the Veteran was placed at absolute bedrest and the report of symptoms persisted until an administrative discharge which had been pending became complete, at which time the Veteran recovered completely. 

Indeed, a March 1970 separation examination marked the spine as "normal," and the Veteran did not report any symptoms or complaints at that time. A review of treatment records first indicate a complaint of back pain in June 2022, which the Veteran attributed to an accident a year and a half prior.

While the Veteran is not competent to diagnose disorders, he is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient
 range of motion with no resistance to movement, strength and reflexes within normal limits, and no sensory deficits. The treating physician noted the Veteran was placed at absolute bedrest and the report of symptoms persisted until an administrative discharge which had been pending became complete, at which time the Veteran recovered completely. 

Indeed, a March 1970 separation examination marked the spine as "normal," and the Veteran did not report any symptoms or complaints at that time. A review of treatment records first indicate a complaint of back pain in June 2022, which the Veteran attributed to an accident a year and a half prior.

While the Veteran is not competent to diagnose disorders, he is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous evidence to support service connection. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). However, service connection cannot be warranted based purely on the assertions of continuous symptoms in this case. 

Specifically, no back conditions were noted on his March 1970 separation examination, and he denied any related symptoms at that time. Moreover, a review of treatment records indicates the Veteran's statements surrounding his reported back injury in service were inconsistent, and the Board cannot find them credible. For instance, a January 1970 record reported he felt a pop in his back and had pain while lifting a heavy object, and in February 1970 reported he had no pain during the job where he was lifting but noticed gradual onset of back pain. Additionally, his reported symptoms in service were inconsistent with medical evaluation at that time, and were inconsistent with his denial of symptoms at his separation examination. While he reported issues "all his life" with his lower back in a March 2023 treatment record, he attributed his symptoms to a motorcycle accident in a June 2022 record. Importantly, while he complained of exacerbations and continuing back pain the weeks leading up to his discharge, the physician noted his reports of symptoms followed no particular pattern and the Veteran reported a sudden full recovery with no complaints of symptoms at his discharge physical. Additionally, the fact that over fifty years elapsed from the time he left active duty and the first reports of symptoms weighs against a conclusion that continuous symptoms were present. Therefore, the evidence does not demonstrate the condition began in service or that he has experienced continuity of symptoms since service. 38 C.F.R. § 3.303.

Next, the lack of continuous symptoms notwithstanding, service connection may also be granted if the evidence shows the Veteran's condition is otherwise related to service. 

In this regard, a VA examination was obtained in December 2024 to determine the nature and etiology of the Veteran's condition. The examiner opined it was less likely than not the Veteran's vertebral fracture and lumbosacral strain was incurred in or caused by the claimed in-service injury, event, or illness. In support, the examiner noted multiple service treatment records documented evaluation and treatment for low back pain while on active duty, but that the separation exam in March 1970 did not document a back condition. The examiner also noted recent evaluation and management of low back pain with his primary care physician revealed a compression fracture of an indeterminate age, and the physician noted the fracture could have occurred during a motorcycle accident three years prior in which he fractured several other bones including the left femur. The examiner diagnosed vertebral fracture and lumbosacral strain on examination, and described that a compression fracture in the lumbar spine can contribute to lumbosacral strain, as the fractured vertebrae can disrupt the normal alignment and mechanics of the lower back, putting additional stress on the surrounding muscles and ligaments, which can lead to strain in the lumbosacral region. 

Therefore, the examiner determined that while the Veteran had a record of a back injury during service it was more likely than not that the current condition of vertebral fracture occurred during the motorcycle accident, especially given the pain was only documented following the motorcycle accident. The examiner performed an in-person examination, considered the Veteran's lay statements, considered the specific medical history and service information, and provided clear conclusions and supporting evidence. As such, the examiner's opinion is found adequate and accordingly given significant probative weight.   

In support of his claim, the Veteran submitted a private medical opinion from his treating chiropractor, who opined the Veteran's current conditions were highly likely related to and stem from trauma to the spine in service, which increased susceptibility for chronic inflammation to the thoracic and lumbar spine. The chiropractor noted that experience in practice and medical literature supported that once a certain degree of trauma to a joint has been sustained, that element existed to become a further weakened link for future harbinger of inflammatory processes, creating pain or chronic pain syndromes.
 Veteran's lay statements, considered the specific medical history and service information, and provided clear conclusions and supporting evidence. As such, the examiner's opinion is found adequate and accordingly given significant probative weight.   

In support of his claim, the Veteran submitted a private medical opinion from his treating chiropractor, who opined the Veteran's current conditions were highly likely related to and stem from trauma to the spine in service, which increased susceptibility for chronic inflammation to the thoracic and lumbar spine. The chiropractor noted that experience in practice and medical literature supported that once a certain degree of trauma to a joint has been sustained, that element existed to become a further weakened link for future harbinger of inflammatory processes, creating pain or chronic pain syndromes. However, the opinion fails to indicate evidence that supports the "certain degree of trauma" was evident in the Veteran's service treatment records, which did not indicate significant injury, and consistently examined the Veteran's back as normal. Moreover, the opinion fails to reference the motorcycle accident in close proximity to the Veteran's reports of pain to his back, which is documented in his records as a serious trauma breaking several bones. Notably, the Veteran reported his back and neck pain as associated with this incident in a June 2022 treatment record. For these reasons, the Board finds the opinion of minimal probative value as it is inconsistent with the other evidence of record and did not consider all the relevant facts.

The Board has considered statements from the Veteran regarding his belief of a relationship between his back condition to active service. Nevertheless, while he is competent to provide testimony regarding observable symptomatology, he is not competent to provide a nexus opinion in this case. Jandreau, 492 F.3d at 1377, 1377 n.4. The issue of etiology is medically complex and requires specialized medical education and knowledge to answer. Therefore, the unsubstantiated statement regarding the claimed etiology of the Veteran's condition is found to lack competency.

Accordingly, the persuasive weight of the evidence indicates service connection for a back condition is not warranted, and the claim must be denied.

3. Entitlement to service connection for tinnitus.

The Veteran seeks entitlement to service connection for tinnitus. He contends hazardous noise exposure during his time in active service caused his tinnitus.

After a review of the evidence of record, the Board finds service connection is not warranted. 

Initially, the Board observes that in the rating decision on appeal the AOJ made favorable findings, including that the Veteran had a current diagnosis for tinnitus, and that the evidence showed an event during active service. Under the AMA, the Board is bound by favorable findings made by the AOJ in the absence of evidence of clear and unmistakable error. 38 C.F.R. § 3.104(c). As such, a current diagnosis and in-service event are conceded. 

Next, the service treatment records do not show complaints, treatment, or diagnosis for symptoms likely attributed to tinnitus. The March 1970 separation examination marked ears as "normal," and did not indicate any auditory symptoms. A review of records first indicated auditory symptoms in September 2024 with the filing of his claim, and the Veteran reported at his VA examination that symptoms of tinnitus began in 2000.

While the Veteran is not competent to diagnose disorders, he is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous evidence to support service connection. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). However, the Veteran's statements do not indicate continuous symptoms in this case. 

Specifically, the Veteran reported at his VA examination that symptoms of tinnitus began in 2000. There are no records prior to his claim that indicate tinnitus symptoms. Notably, A March 2020 record reported no tinnitus. Therefore, the evidence does not demonstrate the condition began in service or that he has experienced continuity of symptoms since service. 38 C.F.R. § 3.303.

Next, service connection may also be granted if the evidence shows the Veteran's condition is otherwise related to service. In this regard, a VA examination was obtained in January 2025 to determine the nature and etiology of the Veteran's condition. The examiner opined it was less likely than not the Veteran's tinnitus was incurred in or caused by the claimed in-service injury, event, or illness. In support, the examiner noted that medical records did not indicate ear related injuries that occurred during service to cause tinnitus, and tinnitus symptoms did not begin until 30 years after separation from service. The examiner also noted that the Veteran was exposed to noise after leaving military, including motorcycles and truck driving. The examiner determined it was more likely tinnitus was
 service connection may also be granted if the evidence shows the Veteran's condition is otherwise related to service. In this regard, a VA examination was obtained in January 2025 to determine the nature and etiology of the Veteran's condition. The examiner opined it was less likely than not the Veteran's tinnitus was incurred in or caused by the claimed in-service injury, event, or illness. In support, the examiner noted that medical records did not indicate ear related injuries that occurred during service to cause tinnitus, and tinnitus symptoms did not begin until 30 years after separation from service. The examiner also noted that the Veteran was exposed to noise after leaving military, including motorcycles and truck driving. The examiner determined it was more likely tinnitus was obtained due to causes not related to military noise exposure. The examiner performed an in-person examination, considered the Veteran's lay statements, considered the specific medical history and service information, and provided clear conclusions and supporting evidence. As such, the examiner's opinion is found adequate and accordingly given significant probative weight.   

Additionally, a February 2025 VA examiner opined that it was less likely than not the Veteran's tinnitus was caused by an indicated toxic exposure risk activity (TERA) after considering the total potential exposure through all applicable military deployments and the synergistic, combined effect of all TERAs of the Veteran. The examiner noted the Veteran's military occupational specialty of aviation storekeeper had a low probability of hazardous noise exposure, that a separation audiogram in March 1970 revealed hearing within normal limits bilaterally which indicated no acoustic trauma during service, and no damage to the auditory system was found from any toxic exposure while in service. The examiner noted there were many possible causes of tinnitus and that risk factors outside of military service far outweighed the factors identified in the TERA, and that there was no medical or scientific evidence available that provided any indication of a relationship between the development of tinnitus and the TERA. The examiner noted review and consideration of the available relevant records, indicated consideration of the relevant specific medical history and service information, and provided clear conclusions and supporting evidence. As such, the examiner's opinion is found adequate and accordingly given significant probative weight.

Unfortunately, there are no positive opinions of record that would relate the Veteran's tinnitus to service. While the Board has considered the evidence submitted in support of his claim, including an article regarding associations between tinnitus and hearing loss among noise exposed workers, it does not find the evidence persuasive. Notably, the article is general in nature and fails to identify the specific facts and circumstances regarding this particular Veteran. Importantly, although the article indicates a potential association with work noise exposure and tinnitus, the VA examiner noted that the Veteran was exposed to noise in his work after the military driving trucks. 

The Board has considered statements from the Veteran regarding his belief of a relationship between his tinnitus to active service. Nevertheless, while he is competent to provide testimony regarding observable symptomatology, he is not competent to provide a nexus opinion in this case. Jandreau, 492 F.3d at 1377, 1377 n.4. The issue of etiology is medically complex and requires specialized medical education and knowledge to answer. Therefore, the unsubstantiated statement regarding the claimed etiology of the Veteran's condition is found to lack competency.

Accordingly, the persuasive weight of the evidence indicates service connection for tinnitus is not warranted, and the claim must be denied. 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. 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Patterson, Associate Counsel