TINNITUS

Summary

The veteran served from October 1985 to October 1989. The veteran appeals the denial of service connection for tinnitus and hearing loss, and seeks readjudication for sleep apnea secondary to PTSD. New and relevant evidence was received for tinnitus and sleep apnea, allowing for readjudication. However, no new and relevant evidence was submitted for the hearing loss claim, leading to its denial for readjudication. The Board found the evidence for tinnitus to be approximately balanced, granting service connection due to the benefit of the doubt doctrine and the veteran's competent testimony regarding noise exposure on the flight line. The Board also granted readjudication for sleep apnea, noting a new theory of entitlement as secondary to grand mal seizure disorder. The hearing loss claim was denied readjudication as the submitted evidence was not new and relevant, and the Board found the evidence preponderated against a nexus to service, noting the veteran's request for an updated hearing loss examination was not new evidence. Service connection for tinnitus is granted. Service connection for sleep apnea secondary to PTSD and grand mal seizure disorder is remanded for further development and consideration on the merits.

Rationale

New and relevant evidence received for tinnitus; Evidence approximately balanced; Benefit of the doubt applied; Veteran's testimony regarding noise exposure on flight line is competent

Full Decision Text

Citation Nr: A26039641
Decision Date: 04/28/26	Archive Date: 04/28/26

DOCKET NO. 210818-180361
DATE: April 28, 2026

ORDER

New and relevant evidence having been received, the application to readjudicate the claim for service connection for tinnitus is granted.

New and relevant evidence having been received, the application to readjudicate the claim for service connection for sleep apnea secondary to post traumatic stress disorder (PTSD) is granted.

New and relevant evidence has not been received and the application to readjudicate the claim for service connection for hearing loss is denied.

Service connection for tinnitus is granted.

REMANDED

Service connection for sleep apnea, to include as secondary to posttraumatic stress disorder and grand mal seizure disorder is remanded.

FINDINGS OF FACT

1. Entitlement to service connection for tinnitus was previously denied in a May 2021 decision, and evidence received since the May 2021 decision is new and tends to prove or disprove a matter at issue in the claim.

2. Entitlement to service connection for sleep apnea was previously denied in a May 2021 decision, and evidence received since the May 2021 decision is new and tends to prove or disprove a matter at issue in the claim.

3. Entitlement to service connection for hearing loss was previously denied in a May 2021 decision, and evidence received since the May 2021 decision is not new and does not tend to prove or disprove a matter at issue in the claim.

4. The evidence is evenly balanced as to whether tinnitus was noted in service with post-service continuity of the same symptomatology.

CONCLUSIONS OF LAW

1. The criteria for readjudication of the previously denied claim for service connection for tinnitus have been met.  38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.2501, 19.2(a).

2. The criteria for readjudication of the previously denied claim for service connection for sleep apnea secondary to posttraumatic stress disorder (PTSD) have been met.  38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.2501, 19.2(a).

3. The criteria for readjudication of the previously denied claim for service connection for hearing loss have not been met.  38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.2501, 19.2(a).

4. The criteria for service connection for tinnitus have 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 had active duty service from October 1985 to October 1989.

The matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2021 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In the August 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran elected the Hearing option.  The Veteran testified before the Board on April 7, 2025.  A copy of the hearing transcript is associated with the claims file.

Under the Hearing option, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his or her representative at the hearing or within 90 days following the hearing.  38 C.F.R. § 20.302(a).

Readjudication of Claims

Effective February 19, 2019, when a claim has been previously disallowed it may not thereafter be readjudicated and allowed and a claim based upon the same factual basis may not be considered, unless the Veteran submits a supplemental claim along with new and relevant evidence.  38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.2501, 19.2(a).  If new and relevant evidence is presented or secured with respect to the supplemental claim, the agency of original jurisdiction will readjudicate the claim taking into consideration all of the evidence of record.  38 C.F.R. §§ 3.156(d), 3.2501.

New evidence is evidence that was not previously part of the actual record before agency adjudicators at the time of the prior denial.  38 C.F.R. § 3.2501(a
 not be considered, unless the Veteran submits a supplemental claim along with new and relevant evidence.  38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.2501, 19.2(a).  If new and relevant evidence is presented or secured with respect to the supplemental claim, the agency of original jurisdiction will readjudicate the claim taking into consideration all of the evidence of record.  38 C.F.R. §§ 3.156(d), 3.2501.

New evidence is evidence that was not previously part of the actual record before agency adjudicators at the time of the prior denial.  38 C.F.R. § 3.2501(a)(1). Relevant evidence is information that tends to prove or disprove a matter at issue in a claim, including evidence that raises a theory of entitlement to benefits that was not previously addressed.  Id.

1. Whether new and relevant evidence has been received to readjudicate the claim for service connection for tinnitus

2. Whether new and relevant evidence has been received to readjudicate the claim for service connection for sleep apnea secondary to posttraumatic stress disorder (PTSD)

The Board finds that new and relevant evidence has been submitted to readjudicate the claims of service connection for tinnitus and sleep apnea.  The claims were previously denied in a May 2021 Board decision because there was no evidence of these disabilities during service and the evidence did not show that the disabilities were related to the Veteran's service.  

Evidence received since the May 2021 Board decision includes testimony from the Veteran that his ears have been ringing ever since he was exposed to loud noises while working on the flight line during service and testimony that raises a new theory of entitlement for service connection for sleep apnea as secondary to service-connected grand mal seizure disorder.  The Veteran's testimony is relevant in that it tends to prove a matter at issue in the claims.  Accordingly, as new and relevant evidence has been received, the Veteran's application to readjudicate his claims of service connection for tinnitus and sleep apnea is granted.

3. Whether new and relevant evidence has been received to readjudicate the claim for service connection for hearing loss

The Board finds that new and relevant evidence has not been submitted to readjudicate the claim of service connection for hearing loss.  The claim was previously denied in a May 2021 Board decision because the Veteran did not have hearing loss for VA purposes under 38 C.F.R. § 3.385.  

Evidence received since the May 2021 Board decision is not new and does not tend to prove or disprove a matter at issue in the claim.  During his Board hearing, the Veteran argued that the best thing for hearing loss would be to obtain an updated hearing loss examination.  No other evidence or testimony presented was new and relevant to the Veteran's hearing loss claim.  Accordingly, as new and relevant evidence has not been received, the Veteran's application to readjudicate his claims of service connection for hearing loss is denied.

Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303.

The Veteran is competent to report symptoms and experiences he can observe.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).  The VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009).

The standard of proof to be applied in decisions on claims for veteran's benefits is set forth in 38 U.S.C. § 5107.  Under § 5107(b) and Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001), a claimant is to receive the benefit of the doubt when there is an "approximate balance" of positive and negative evidence, which Ortiz interpreted as "nearly equal" evidence.  Lynch v.
 due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009).

The standard of proof to be applied in decisions on claims for veteran's benefits is set forth in 38 U.S.C. § 5107.  Under § 5107(b) and Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001), a claimant is to receive the benefit of the doubt when there is an "approximate balance" of positive and negative evidence, which Ortiz interpreted as "nearly equal" evidence.  Lynch v. McDonough, 21 F.4th 776, 780-81 (Fed. Cir. 2021) (en banc).

1. Service connection for tinnitus

The Veteran contends that tinnitus is related to exposure to loud noises during service.

A current disability of tinnitus and exposure to noise during military service were favorable findings in the rating decision on appeal.  Thus, the question for the Board is whether there is a nexus between tinnitus and the in-service noise exposure.

The Veteran was afforded a hearing loss and tinnitus VA examination in October 2016.  The Veteran reported that tinnitus began "over 20 years" ago.  The examiner opined that it was less likely than not that the onset of Veteran's tinnitus was caused by or a result of military noise exposure.  She reasoned that there was no evidence of noise injury or acoustic trauma because the Veteran's hearing was within normal limits at the time of enlistment and separation and there were no permanent threshold shifts. 

As noted above, new and relevant evidence has been received in this claim.  During his Board hearing, the Veteran testified that his ears have been ringing ever since he was exposed to loud noises while working on the flight line during service.

In light of the foregoing, the competent and probative evidence is approximately balanced as to whether tinnitus was noted in service with post-service continuity of the same symptomatology and the claim is granted.  Because of the inherently subjective nature of tinnitus, it is readily capable of even lay diagnosis and the Veteran, as a layperson, is competent to testify or make statements as to his symptoms.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  As tinnitus is a chronic disease under 38 C.F.R. § 3.309(a), an award of service connection may be established based on continuity of symptomatology, and any doubt on the material issue of nexus is resolved in the Veteran's favor.  See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013).

REASONS FOR REMAND

1. Service connection for sleep apnea, to include as secondary to posttraumatic stress disorder and grand mal seizure disorder is remanded.

In the July 2021 rating decision on appeal, the AOJ denied entitlement to service connection for sleep apnea as secondary to posttraumatic stress disorder on the basis that new and relevant evidence had not been submitted.  As such, the AOJ did not address the merits of the claim.  See Hickson v. Shinseki, 23 Vet. App. 394 (2010).  However, as discussed above, new and relevant evidence has been submitted, and a new theory of entitlement has been raised.  Therefore, readjudication of the claim is warranted.  Thus, the issue must be remanded so that the AOJ may satisfy a regulatory or statutory duty and consider the claim on the merits.  See id.

The matters are REMANDED for the following action:

1. Readjudicate the claim for entitlement to service connection for sleep apnea, to include as secondary to posttraumatic stress disorder and grand mal seizure disorder on the merits.

 

 

K. Parakkal

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B Jackson, M.

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.