Case A26038826

Summary

The Veteran, who served on active duty from February 1961 to February 1965, appealed the denial of service connection for migraine headaches and bilateral hearing loss. The Veteran withdrew the appeal for migraine headaches during a Board hearing, leading to its dismissal. For the bilateral hearing loss claim, the Veteran had filed a claim in July 2024, which was subsequently denied by the AOJ in December 2024. However, a later rating decision in April 2026 granted service connection for bilateral hearing loss with a 0 percent rating, effective January 15, 2026. The Board acknowledged the AOJ's favorable findings regarding the current diagnosis and the nexus to service. Although the AOJ granted service connection, the Board reviewed the appeal to determine if an earlier effective date was warranted, as the current appeal was pending since July 2024. The Board found that entitlement to service connection for bilateral hearing loss prior to the January 15, 2026 effective date was warranted, and thus granted the appeal to that extent. The case also noted a separate claim for tinnitus that was not adjudicated by the AOJ but was granted in an April 2026 rating decision.

Rationale

Veteran withdrew appeal for migraine headaches at hearing.; Withdrawal met requirements for explicit, unambiguous action.; Board lacks jurisdiction to review dismissed issue.

Full Decision Text

Citation Nr: A26038826
Decision Date: 04/27/26	Archive Date: 04/27/26

DOCKET NO. 250819-574676
DATE: April 27, 2026

ORDER

The appeal for the issue of entitlement to service connection for migraine headaches is dismissed.

Entitlement to service connection for bilateral hearing loss prior to January 15, 2026, is granted.

FINDINGS OF FACT

1. On the record at the January 2026 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal for entitlement to service connection for migraine headaches.

2. The Veteran's bilateral hearing loss is related to his active duty service.

CONCLUSIONS OF LAW

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

2. The criteria for service connection for bilateral hearing loss are 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 February 1961 to February 1965. ?? 

In the August 19, 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on January 5, 2026.

Therefore, the Board may only consider the evidence of record at the time of the November 2024 agency of original jurisdiction (AOJ) decision on appeal for the issue of service connection for migraine headaches and at the time of the December 2024 AOJ decision for the issue of service connection for bilateral hearing loss, 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. 

Evidence was added to the claims file during a period of time when new evidence was not allowed.  As the Board is deciding the claims for service connection for migraine headaches and bilateral hearing loss, it may not consider this evidence in its decision.  38 C.F.R. § 20.300.  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, considering the new evidence in addition to the evidence previously considered.  Id.  Specific instructions for filing a Supplemental Claim are included with this decision.

The Veteran filed a claim on July 30, 2024, and contended that service connection for tinnitus was warranted. However, the AOJ did not adjudicate the issue of service connection for tinnitus prior to the August 2025 VA Form 10182 substantive appeal, to include in the December 2024 rating decision which adjudicated the issue of service connection for hearing loss.  Therefore, the Board cannot adjudicate entitlement to service connection for tinnitus as part of this decision. However, an April 2026 rating decision granted service connection for tinnitus. If the Veteran would like to appeal the effective date assigned, he should work with his representative to elect a potential appeal option within 1 year of notice of that rating decision.

Entitlement to service connection for migraine headaches.

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, 
 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).

On January 5, 2026, the Veteran withdrew the issue of service connection for migraine headaches orally at the hearing. All of the aforementioned requirements have been met. Accordingly, the Board does not have jurisdiction to review the appeal as to this issue and it is dismissed. 

Entitlement to service connection for hearing loss.

As noted, the Veteran perfected an appeal as to the issue of service connection for hearing loss in his August 2025 VA Form 10182. His Board hearing was held in January 2026. Shortly thereafter, the Veteran filed a January 2026 supplemental claim for bilateral hearing loss, which was denied in the February 2026 rating decision. Following his March 2026 supplemental claim, an April 2026 rating decision granted service connection for bilateral hearing loss and assigned a noncompensable (0 percent) rating, effective January 15, 2026, the date of the earlier supplemental claim. 

The Court of Appeals for Veterans Claims (Court) held in Johnson v. Collins, 38 Vet. App. 151 (2025), that the AOJ's grant of a later-filed claim for service connection does not moot a pending Board appeal of an earlier-filed claim if there are any potential additional benefits that may stem from the claim before the Board (e.g., an earlier effective date or ancillary benefits). See also Bailey v. Wilkie, 33 Vet. App. 188, 203-04 (2021); Warren v. McDonald, 28 Vet. App. 214, 221 (2016).  Accordingly, as the effective date assigned for the award of service connection for bilateral hearing loss does not go back to the date of claim at issue in this appeal, the issue of entitlement to service connection for bilateral hearing 

To that end, the Board recognizes the AOJ's favorable findings in the April 2026 rating decision that the Veteran had a current diagnosis of bilateral hearing loss for VA purposes, and there was a positive nexus of record between the Veteran's hearing loss and his active duty service. See April 2026 rating decision.

The current appeal for service connection for hearing loss has been pending since the Veteran filed his claim in July 2024. Given the favorable findings of the April 2026 rating decision and that the claim at issue in this appeal remained pending, the Board finds that entitlement to service connection for bilateral hearing loss prior to January 15, 2026, the current effective date for service connection, is warranted. To that extent only, the appeal is granted.  

 

J. Kirby

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Struening, Eric

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.