HEARING LOSS

VICTORIA MOSHIASHWILI · 2026 · Case ID: A26038915

GRANTED

Summary

The Veteran, a Marine Corps veteran who served from June 1990 to June 1994 during Peacetime and the Gulf War Era, appeals the denial of service connection for bilateral hearing loss, tinnitus, and chronic diarrhea (previously IBS). The Board found the October 2019 and September 2020 VA examinations to be deficient. The VA examiner for hearing loss and tinnitus opined negatively on nexus, citing a lack of in-service complaints and threshold shifts, which the Board found contrary to VA policy and caselaw. The VA examiner for chronic diarrhea also issued a negative nexus opinion but failed to provide a rationale, did not address the private medical opinion, and did not analyze the Veteran's claim regarding military-provided medication, rendering the opinion impermissibly conclusory and lacking probative value. The Board assigned greater weight to a March 2020 private medical opinion, which provided a positive nexus for bilateral hearing loss, attributing it to repetitive acoustic trauma from firearms and explosives due to the Veteran's MOS as an infantry rifleman. The private physician also opined positively for the chronic diarrhea, linking it to chemical exposure from military-provided pills during Operation Desert Storm. The Board found the private opinion more thorough and consistent with the Veteran's testimony. The Veteran's lay statements regarding observable symptoms during service and their continuity were deemed credible and competent. The Board concluded that service connection for tinnitus, bilateral hearing loss, and chronic diarrhea is warranted.

Rationale

Greater weight assigned to private medical opinion; Deficient VA examination for hearing loss; Credible lay testimony of symptoms since service

Service Branch

MARINE CORPS

Special Benefit

NO SPECIAL BENEFIT

Docket No.

201103-119395

Full Decision Text

Citation Nr: A26038915
Decision Date: 04/27/26 Archive Date: 04/27/26

DOCKET NO. 201103-119395
DATE: April 27, 2026

ORDER

Service connection for bilateral hearing loss is granted.

Service connection for tinnitus is granted.

Service connection for chronic diarrhea with intermittent constipation (previously claimed as irritable bowel syndrome (IBS)), is granted.

FINDINGS OF FACT

1. In March 2020, a private medical provider opined that the Veteran's [now service-connected] bilateral hearing loss was more likely than not caused by his exposure to repetitive acoustic trauma during his military service as an infantry rifleman.

2. The Veteran's currently diagnosed tinnitus was caused by his in-service exposure to hazardous noise because observable symptoms of ringing in the ears began during service and continued since service, thereby establishing a causal link (nexus) between his military service and his current tinnitus disability.

3. In March 2020, a private medical provider opined that the Veteran's [now service-connected] chronic diarrhea (at the time characterized as IBS) was more likely than not caused by his exposure to a chemical substance given to him by the military throughout his tour of duty during Operation Desert Storm.

CONCLUSIONS OF LAW

1. The criteria are met for service connection for bilateral hearing loss. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385.

2. The criteria are met for service connection for tinnitus. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a).

3. The criteria are met for service connection for chronic diarrhea with intermittent constipation. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps during both Peacetime and the Gulf War Era from June 1990 to June 1994, with subsequent service in the Marine Corps Reserve.

In August 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act of 2017 (Appeals Modernization Act or AMA), Pub. Law 115-55, which created a new claims and appeals process for pursuing VA benefits. All initial rating decisions issued after February 19, 2019, are promulgated under the AMA. The rating decision on appeal was issued in October 2020 and constitutes an initial decision; therefore, the AMA applies.

In his timely November 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. By law, for claims appealed in this docket, the Board of Veterans' Appeals (Board) may only consider the evidence of record at the time of the October 2020 Agency of Original Jurisdiction (AOJ) decision on appeal, as well as any evidence presented at the July 2024 hearing (including testimony) or submitted by the Veteran or his representative within 90 days of the hearing. 38 C.F.R. § 20.302. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the hearing, or (2) more than 90 days following the date the hearing was held, then, by law, the Board was not permitted to consider that evidence in this decision. 38 C.F.R. §§ 20.300, 20.302, 20.801. However, because the Veteran's appeal is resolved fully in his favor, there is no need for the Board to consider any additional evidence on this issue.

Clarification of issues on appeal

To afford the Veteran the broadest possible scope for his digestive system disability claim, the issue of IBS has been recharacterized accordingly to that of entitlement to service connection for chronic diarrhea with intermittent constipation.

1. Service connection for bilateral hearing loss

2. Service connection for tinnitus

3. Service connection for chronic diarrhea with intermittent constipation

The Veteran asserts that his current tinnitus, bilateral hearing loss, and digestive disabilities were incurred during active-duty service.

These claims will be addressed together in this opinion because they are closely related and based on the same or similar facts and law.

Legal Criteria

Service connection may be established for a disability that results from personal injury that is suffered, or disease contracted, in the line of duty, in the active military, naval, or air service.
his digestive system disability claim, the issue of IBS has been recharacterized accordingly to that of entitlement to service connection for chronic diarrhea with intermittent constipation.

1. Service connection for bilateral hearing loss

2. Service connection for tinnitus

3. Service connection for chronic diarrhea with intermittent constipation

The Veteran asserts that his current tinnitus, bilateral hearing loss, and digestive disabilities were incurred during active-duty service.

These claims will be addressed together in this opinion because they are closely related and based on the same or similar facts and law.

Legal Criteria

Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be competent evidence of (1) the current existence of the disability for which service connection is being claimed; (2) incurrence of a disease or injury in active service; and (3) a causal link or connection (nexus) between the current disability and the disease or injury incurred in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed Cir. 2004).

Certain chronic diseases (including tinnitus and hearing loss) will be presumed related to service if they (1) were shown as chronic in service; (2) manifested to a compensable degree within a presumptive period following separation from service; or (3) were noted in service, with continuity of symptoms 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); see Fountain v. McDonald, 27 Vet. App. 258 (2015).

Specific to claims for service connection for hearing loss, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000 or 4000 Hertz (Hz) is 40 decibels or greater; the threshold for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385.

When there is no diagnosis of hearing loss in service, the absence of documented hearing loss in service is not fatal to a service connection claim for that disability, especially if service records indicate a significant in-service threshold shift. Ledford v. Derwinski, 3 Vet. App. 87 (1992); Hensley v. Brown, 5 Vet. App. 155 (1993). Establishing service connection is possible if the current hearing loss can be adequately linked to service. Ledford, 3 Vet. App. at 89. Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that the current disability is the result of an injury or disease incurred in service; the determination of which depends on a review of all of the evidence of record. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304.

Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

When there is an approximate balance (nearly equal) of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (2021).

Factual Background

In September 2019, the Veteran first submitted a VA Form 21-526EZ Application for Disability Compensation and Related Compensation Benefits (claim) for bilateral hearing loss, tinnitus, and IBS. The Veteran attended a VA examination in October 2019 to assess his tinnitus and bilateral hearing loss. He reported that
equal) of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (2021).

Factual Background

In September 2019, the Veteran first submitted a VA Form 21-526EZ Application for Disability Compensation and Related Compensation Benefits (claim) for bilateral hearing loss, tinnitus, and IBS. The Veteran attended a VA examination in October 2019 to assess his tinnitus and bilateral hearing loss. He reported that people must repeat themselves and he has difficulty understanding speech accurately when spoken to from a distance, as well as when he is around multiple people speaking at once, thus impacting the ordinary conditions of his daily life.

The audiogram report reflects his Puretone thresholds, in decibels, as follows:

Ear 500Hz 1000Hz 2000Hz 3000Hz 4000Hz

Right 5 10 50 70 60

Left 10 10 45 60 35

Speech audiometry using the Maryland CNC test revealed speech recognition ability of 96 percent in the right ear and 98 percent in the left ear. The VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss meeting the disability threshold for VA purposes under 38 C.F.R. § 3.385. A permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500-6000Hz was not found.

The Veteran also reported experiencing intermittent bilateral tinnitus, which he described as a "table-saw like sound" that occurs once a week for one minute. He was unsure about the exact onset of these sensations. He stated it annoys him during waking hours as he goes about his daily activities, thus impacting the ordinary conditions of his daily life.

While acknowledging the high probability for noise exposure of the Veteran's military occupational specialty (MOS) as a rifleman, the VA examiner issued a negative causal linkage opinion for both disabilities. The rationale for both was that, due to a lack of bilateral hearing loss during service and no shift (decrease) in threshold measures bilaterally during service, it is less likely than not that these disabilities are associated with military noise. The VA examiner also relied on an absence of complaints or treatment during service.

In November 2019 the AOJ issued a rating decision denying service connection for all three claimed disabilities. The Veteran was not afforded a VA examination to assess his claim for IBS. The Veteran timely submitted a VA Form 20-0995 Supplemental Claim in March 2020 appealing the decision. The Veteran provided a March 2020 private medical opinion with his supplemental claim. The private physician provided a positive causal linkage opinion for bilateral hearing loss given the Veteran's history of no hearing problems before service, conceded acoustic trauma during service, no acoustic trauma after service (post-service the Veteran has worked as a mailman with a walking delivery route), and because his hearing loss is the type expected from repeated exposure to acoustic trauma in the military (including operating during Desert Storm and Desert Shield). Thus, the private physician concluded that the Veteran's bilateral hearing loss is more likely than not caused by his exposure to repetitive acoustic trauma from firearms and explosives due to his MOS during his military service.

The private physician also provided a positive causal linkage opinion for the Veteran's digestive condition. The Veteran reported that during Operation Desert Storm, the troops were given oral pills daily to combat possible chemical exposure, after which multiple troop members developed diarrhea. He states that the diarrhea that began during service has "continued to plague him ever since that time." Prior to taking these pills, the Veteran reported no abnormalities of bowel movements. Testing has been positive for multiple food intolerances, but despite adjusting his diet to avoid such foods, he still experiences diarrhea daily. Medical evaluation has not shown any other cause for his digestive issues. Thus, due to the Veteran's history of exposure to chemicals in Kuwait, including the pills given by the military, and the timeframe of the onset of his symptoms, the private physician concluded it is more likely than not that his digestive system disability is a result of his military service.

In September 2020 the Veteran was afforded a VA examination for intestinal conditions. The Veteran reported that his digestive issues began in 1991 after taking daily oral pills provided to the troops during Operation Desert Storm. His symptoms include an uncontrollable urge to use the bathroom, particularly after meals; as a result, he has modified his diet and ensures he is close to a bathroom when eating. The VA report states he described his diarrhea as watery and occurring three to five times a week. The VA examiner diagnosed the Veteran with chronic
in Kuwait, including the pills given by the military, and the timeframe of the onset of his symptoms, the private physician concluded it is more likely than not that his digestive system disability is a result of his military service.

In September 2020 the Veteran was afforded a VA examination for intestinal conditions. The Veteran reported that his digestive issues began in 1991 after taking daily oral pills provided to the troops during Operation Desert Storm. His symptoms include an uncontrollable urge to use the bathroom, particularly after meals; as a result, he has modified his diet and ensures he is close to a bathroom when eating. The VA report states he described his diarrhea as watery and occurring three to five times a week. The VA examiner diagnosed the Veteran with chronic diarrhea. The VA examiner issued a negative causal linkage opinion, finding it less likely than not that the Veteran's chronic diarrhea was caused by in-service exposure to hazardous material during the Gulf War. The examiner based this opinion on the Veteran's medical records and medical literature pertaining to "hazardous exposure" during the Gulf War. The remainder of the opinion discussed the cause, epidemiology, and pathophysiology of diarrhea in general.

In the October 2020 rating decision on appeal, the AOJ made favorable findings that the Veteran has been diagnosed with bilateral hearing loss for VA purposes, tinnitus, and chronic diarrhea; that exposure to hazardous noise has been conceded for the Veteran's tinnitus and bilateral hearing loss disabilities; and that the Veteran served in the Southwest Asia theater of operation during Desert Storm. However, the AOJ did not find a nexus for any of the three disabilities.

The Veteran submitted his Board appeal in November 2020, requesting a hearing before a Veterans Law Judge. A hearing was held in July 2024, and the Veteran's testimony was consistent with his prior statements and other evidence of record. The Veteran stated that his first time experiencing tinnitus was while clearing bunkers with live ammunition during training before the war started; however, he did not realize the ringing would be permanent, which is why he did not seek treatment in service and because "back then nobody [sought] treatment for anything unless you were dying. You weren't allowed to seek treatment for anything unless it was life or death." He testified that he has continued to experience buzzing noises ever since that time.

Regarding his bilateral hearing loss, the Veteran first noticed it when he got out of service. "I had turned 22 like the next month I got out. And all my friends are civilians, so their hearing was good, and I noticed mine was significantly worse than them, especially in one ear, my right ear. And as time persisted as I aged, it's gotten worse and now it's got to the point now that when I watch TV, I only hear like obviously the action sequences or something, you know? You can hear that or the yelling or something, but you can't really hear the dialogue." Further, the Veteran testified that he has held the same job as a mail carrier since he separated from service at 22 years old, with no post-service hazardous noise exposure.

Regarding his intestinal issues, the Veteran testified that he experiences diarrhea, abdominal stress and pain, and unexpected bowel movements, which he did not experience before service. "[T]hen all of a sudden, when I was in Desert Storm it started...I didn't think anything about it because it was normal probably for a lot of people there, and probably everybody there we just thought it was the diet...and then it progressed and then as I got out, it really progressed...It has been persistent and constant [since onset during service]."

Analysis

The record appears silent for any complaints, treatment, or diagnoses related to tinnitus, hearing loss, or chronic diarrhea during the Veteran's service or within his first post-service year. Thus, there is no basis for awarding service connection on a presumptive basis as a chronic disease. What remains for consideration is whether these disabilities might otherwise be related to service.

The Board has no reason to disturb the favorable findings of the AOJ on appeal. Therefore, the crux of the Veteran's appeal is whether a causal link exists between his in-service noise exposure and his current tinnitus and bilateral hearing loss disabilities, and between his Gulf War exposure during Desert Storm and his current chronic diarrhea disability.

Turning to the medical evidence, the Board cannot assign significant probative weight to the October 2019 VA examination and opinion. The examiner's rationale that the Veteran's bilateral hearing loss and tinnitus were less likely than not related to his in-service noise exposure based on a lack of evidence showing "threshold shifts" between his entrance and separation audiograms and because his STRs are absent of evidence of hearing loss or complaints of tinnitus are contrary to VA's policies as interpreted by relevant legal caselaw on this topic. See Ledford, 3 Vet. App. at 89; Hensley,
exposure and his current tinnitus and bilateral hearing loss disabilities, and between his Gulf War exposure during Desert Storm and his current chronic diarrhea disability.

The Board likewise assigns limited probative weight to the September 2020 VA examination. While the VA examiner went into great detail describing the nature and causes of chronic diarrhea generally, the negative nexus opinion was impermissibly conclusory (that is, without a rationale that the Board can weigh to render an informed decision as it related to this Veteran's claim and factual situation) by failing to provide an explanation as to why the medical literature purportedly does not support a causal link. See Dalton v. Nicholson, 21 Vet. App. 23 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

Further, VA has the obligation to weigh and consider all evidence on record. Hogan v. Peake, 544 F. 3d 1295, 1298 (2008). The VA examiner failed to address, let alone reconcile, the March 2020 private causal linkage opinion. The VA examiner also did not address the "medication" provided to the Veteran during Operation Desert Storm, which the Veteran contends is the cause of his digestive disability. Thus, it appears that the examiner did not consider or analyze all relevant evidence of record. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise has no probative value); see also Nieves-Rodriguez, 22 Vet. App. at 304 (stating that "[t]he Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion").

The Board assigns greater weight to the March 2020 private medical opinion. The private physician was aware of the relevant facts of the Veteran's case and provided a more thorough rationale that showed a deeper understanding of the Veteran's specific history and current medical state in forming their opinion than the VA examiners. Further, this opinion is more consistent with the Veteran's testimony.

The Board assigns significant weight to the competent (that is, medically qualified) and credible lay statements and testimony from the Veteran describing the observable symptoms of his disabilities during service and their continuity and progressive worsening since service. These statements are competent: that is, the party submitting them is qualified to report this information because it does not require medical training or expertise to accurately report these observable events. The Board finds no reason to discount these statements.

The Veteran clearly described continuing symptoms since service for all three disabilities at issue. By law, a persistence of symptoms since service may be sufficient to establish a causal link, absent clear and convincing medical evidence to the contrary. A lack of medical evidence is not clear and convincing. See Horn v. Shinseki, 25 Vet. App. 231, 239 n.7 (2012) (Absence of evidence cannot be substantive negative evidence without "a proper foundation... to demonstrate that such silence has a tendency to prove or disprove a relevant fact"). The October 2019 and September 2020 VA medical opinions fail to constitute "clear and convincing medical evidence to the contrary" given their deficiencies discussed herein.

Further, the Veteran clearly explained the absence of complaints, treatment, or diagnoses of these disabilities during service, which the VA examiners heavily relied on in concluding that a causal link had not been established. He also adequately explained at the Board hearing why he did not seek treatment initially after service. Moreover, regarding his tinnitus and bilateral hearing loss disabilities, there is no persuasive evidence suggesting that, after service, the Veteran was exposed to noise so severe and pervasive that it could be considered an intervening trauma or intercurrent post-service cause. Thus, the final element for service connection has been established.

Accordingly, based on a totality of evidence described above, including the probative weight assigned to each piece of evidence, and affording the Veteran the maximum benefit sought, the Board concludes that service connection for the Veteran's tinnitus, bilateral hearing loss
service, which the VA examiners heavily relied on in concluding that a causal link had not been established. He also adequately explained at the Board hearing why he did not seek treatment initially after service. Moreover, regarding his tinnitus and bilateral hearing loss disabilities, there is no persuasive evidence suggesting that, after service, the Veteran was exposed to noise so severe and pervasive that it could be considered an intervening trauma or intercurrent post-service cause. Thus, the final element for service connection has been established.

VICTORIA MOSHIASHWILI

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Meadows, Samantha A.

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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