ULNAR NERVE PARALYSIS

MARJORIE A. AUER · 2026 · Case ID: A26040022

MIXED

Summary

The veteran served from July 1973 to July 1976. This case involves appeals from February and May 2021 rating decisions, with the veteran electing a Board hearing. The veteran sought service connection under 38 U.S.C. § 1151 for an injury to the digital nerve of the right index finger, and for scar conditions and fibrosis on the right forearm and palm, alleging these were due to VA-administered healthcare. The veteran also appealed the denial of service connection for bilateral hearing loss and sought service connection for tinnitus. The Board denied the § 1151 claims, finding no evidence of VA fault or unforeseeable events causing the claimed injuries. The Board also denied service connection for bilateral hearing loss, noting the hearing loss pre-existed service and was not shown to have worsened or be related to service, with the evidence preponderating against a nexus. However, service connection for tinnitus was granted, as the evidence was found to be in equipoise, and the benefit of the doubt was resolved in the veteran's favor.

Rationale

No VA fault or unforeseeable event established; Evidence did not show care resulted in additional disability; Claim denied under 38 U.S.C. § 1151

Special Benefit

§1151

Docket No.

210714-173081

Full Decision Text

Citation Nr: A26040022
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 210714-173081
DATE: April 29, 2026

ORDER

Entitlement to service connection for injury of digital nerve of right index finger due to VA-administered healthcare under 38 U.S.C. § 1151 is denied.

Entitlement to service connection for scar condition and fibrosis of skin to right forearm due to VA-administered healthcare under 38 U.S.C. § 1151 is denied.

Entitlement to service connection for scar condition and fibrosis of skin to right palm due to VA-administered healthcare under 38 U.S.C. § 1151 is denied.

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for tinnitus is granted.

FINDINGS OF FACT

1. The Veteran's injury of digital nerve of right index finger was not proximally caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing medical care, nor from an event not reasonably foreseeable.

2. The Veteran's scar condition and fibrosis of skin to right forearm was not proximally caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing medical care, nor from an event not reasonably foreseeable.

3. The Veteran's scar condition and fibrosis of skin to right palm was not proximally caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing medical care, nor from an event not reasonably foreseeable.

4. The right ear hearing loss preexisted service and did not increase in severity during active service.

5. The left ear hearing loss was not manifested during service, a significant upward threshold shift in hearing acuity did not occur in service between the reference and subsequent audiograms, sensorineural hearing loss was not shown during the first post-service year, continuity of symptomatology is not established, and the most probative evidence indicates that the Veteran's current left ear hearing loss is not otherwise related to his active service

6. The evidence is at least in equipoise as to whether the Veteran's tinnitus is etiologically related to his active-duty service.

CONCLUSIONS OF LAW

1. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for injury of digital nerve of right index finger is not met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361.

2. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for scar condition and fibrosis of skin to right forearm is not met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361.

3. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for scar condition and fibrosis of skin to right palm is not met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361.

4. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 101, 1110, 1111, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.385.

5. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385.

6. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from July 1973 to July 1976.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2021 and May 2021 rating decisions.

In the July 14, 2021, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on April 29, 2025.

Therefore, the Board may only consider the evidence of record at the
); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from July 1973 to July 1976.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2021 and May 2021 rating decisions.

In the July 14, 2021, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on April 29, 2025.

Therefore, the Board may only consider the evidence of record at the time of the February 2021 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review, 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, which was subsequently subject to higher-level review 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 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.

1151 Eligibility

Under 38 U.S.C. § 1151, compensation is awarded for a qualifying additional disability or death in the same manner as if such additional disability or death were service connected. For purposes of this section, a disability or death is a qualifying additional disability if (1) the disability or death was not the result of the veteran's willful misconduct, (2) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under the law administered by the Secretary, and (3) the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1).

To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. Merely showing that a veteran received care and has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Further, hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2).

To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death and that (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider or that (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. 38 C.F.R. § 3.361(d)(1).

Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32
, the veteran's representative's informed consent. 38 C.F.R. § 3.361(d)(1).

Where an individual is awarded a judgment against the United States in a civil action brought pursuant to 28 U.S.C. § 1346(b) or enters into a settlement or compromise, then no benefits under 38 U.S.C. § 1151 shall be paid to such individual for any month beginning after the date such judgment, settlement, or compromise becomes final until the aggregate amount of benefits which would be paid but for this prohibition equals the total amount included in such judgment, settlement, or compromise. 38 U.S.C. § 1151(b)(1). Additional law regarding the offset amount is specified at 38 U.S.C. § 1151(b)(2).

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

1. Entitlement to service connection for injury of digital nerve of right index finger due to VA-administered healthcare under 38 U.S.C. § 1151

2. Entitlement to service connection for scar condition and fibrosis of skin to right forearm due to VA-administered healthcare under 38 U.S.C. § 1151

3. Entitlement to service connection for scar condition and fibrosis of skin to right palm due to VA-administered healthcare under 38 U.S.C. § 1151

The Veteran seeks entitlement to compensation under 38 U.S.C. § 1151 due to complications associated with his resection of right-hand mass and a second surgery to repair the nerve. Specifically, the Veteran contends the first surgery resulted in the inability to move his right index finger. The second surgery resulted in improvement in right index finger range of motion, but still less than 50 percent. It also resulted in a new scar and making the existing scar on his palm larger and painful.

An April 2015 VA treatment record noted the Veteran was scheduled for excision of a right-hand mass. A pre-operative note showed the proposed procedure was discussed with the Veteran, that he concurred with the operative site, and an appropriate assessment was completed prior to surgery confirming the necessity for the procedure was still present. The Veteran underwent the procedure and complained of right-hand numbness after local injection but could move all of his fingers. Post operative note listed the surgical procedure as excision of right-hand ganglion cyst. A telephone encounter note for follow-up the day after the surgery noted the Veteran was feeling well with a pain level of 0/10 and he had no concerns.

The consent to remove a ganglion cyst included the following known risks and side effects: infection that may require antibiotics and/or further surgery, tendon, nerve, or blood vessel injury with possible excessive bleeding, temporary or permanent numbness/weakness of the extremity, unsightly or painful scar that may limit range of motion or function, unexpected change in procedure at time of surgery, less than complete recovery of normal functions or pain relief, and recurrence of ganglion.

An April 2015 VA treatment record noted one week status post excision of right-hand mass the veteran reported slight tingling to his right index finger.

A May 2015 VA treatment record noted two weeks status post right-hand mass excision the Veteran was doing well. The Veteran reported improving sensation to his index finger. He had full range of motion. His sutures were removed.

A June 2015 VA treatment record noted two months status post right palm lipoma excision the Veteran reported he had continued pain with movement of his index finger. On examination he had limited active flexion of his index finger and full passive range of motion. Sensation was diminished over the distal index finger. The incision was well healed.

A July 2015 occupational therapy consult noted the Veteran reported intermittent right-hand pain, constant numbness and tingling in the right index finger and palm, and
.

A July 2015 occupational therapy consult noted the Veteran reported intermittent right-hand pain, constant numbness and tingling in the right index finger and palm, and his right hand would easily turn black and blue. The therapist noted a well-healed scar on the right palm and minimal edema.

An August 2015 VA treatment record noted the Veteran continued to limit his right index finger range of motion. The incision was well-healed. It was noted the Veteran understood he needed aggressive physical therapy.

A September 2015 VA treatment record noted the Veteran continued with aggressive occupational therapy. He had good function with activities of daily living. There was slight flexion lag with active range of motion. Sensation was returning over the radial aspect of the index finger. The scar was well healed.

A March 2016 VA treatment record noted the Veteran's six month follow up was cancelled because his surgeon was no longer employed at the VA clinic. He was told to contact the clinic if he felt he needed an appointment.

A June 2016 VA treatment record noted the Veteran complained of swelling, numbness, and tingling in the right hand and index finger since his surgery a year ago.

A December 2016 VA treatment record noted the Veteran requested a consultation with a plastic surgeon with reference to the surgery that was done on his hand. He noted he still had issues with bending, tingling and numbness.

A February 2017 VA treatment record noted the Veteran reported numbness and tingling of the right index finger as well as limited flexion. On examination, the Veteran's index fingertip flexed to within 2.5 cm from palm, scar in thenar eminence area when palpated/percussed gives pos Tinel with paresthesias to index finger, area of pos Tinel was at scar proximal to proximal palmar flexion crease, in line with space between index and long fingers. Active flexion of proximal interphalangeal joint (PIP) was to 55 degrees and distal interphalangeal joint (DIP) was to 35 degrees. Passive flexion was similar to active flexion. Sensory examination showed numbness of radial side of the index finger. The impression was the radial digital nerve was probably compromised at surgery or caught in the scar. This was the same for flexor tendons, particularly profundus. Diagnosis was neuroma radial digital nerve to index finger right hand and adhesions flexor tendons right hand index finger.

An April 2017 VA treatment record noted the Veteran's numbness of the index finger had progressed since therapy. Numbness was on the radial side of the right index finger distal to a well healed palmar scar. He was unable to fully flex his right index finger actively or passively more than approximately 50 percent. Right hand index finger digital nerve exploration with nerve grafting and right index flexor tenolysis were discussed. Given the Veteran's normal two-point discrimination he may have only needed a neurolysis of the nerve in the area depending on the findings during surgery. They also discussed recovery time after and the amount of time it would likely take to develop sensation. It was further noted that he may not completely recover, especially due to the length of time it had been since his initial operation. Indications, risks, benefits, limitations and possible complications were explained to the Veteran, and he expressed understanding and wishes to proceed with the operation. Tendon adhesions were noted with sensory nerve dysfunction along the radial aspect of the index finger. This was noted to likely represent nerve adhesions in the scar versus neuroma in continuity. Exploration, tenolysis of flexor digitorum superficialis (FDS) and flexor digitorum profundus (FDP), external, possible internal neurolysis with possible neuroma excision, possible autologous nerve graft, and possible nerve wrap were recommended. Risks and benefits were discussed and the Veteran elected to proceed. The Veteran provided informed consent for hand tenolysis and nerve repair.

A May 2017 VA treatment record noted the proposed procedure was discussed with the Veteran and he concurred with the operative site. The appropriate assessment was completed prior to surgery confirming the necessity for the procedure was still present. The Veteran underwent right index finger exploration, digital nerve
adhesions in the scar versus neuroma in continuity. Exploration, tenolysis of flexor digitorum superficialis (FDS) and flexor digitorum profundus (FDP), external, possible internal neurolysis with possible neuroma excision, possible autologous nerve graft, and possible nerve wrap were recommended. Risks and benefits were discussed and the Veteran elected to proceed. The Veteran provided informed consent for hand tenolysis and nerve repair.

A May 2017 VA treatment record noted the proposed procedure was discussed with the Veteran and he concurred with the operative site. The appropriate assessment was completed prior to surgery confirming the necessity for the procedure was still present. The Veteran underwent right index finger exploration, digital nerve reconstruction with PIN graft and integra nerve wrap. The post operation diagnosis was right index finger nerve injury. The Veteran's exposed fingers had good motor, sensation and circulation. A telephone encounter the next day noted no issues. At the one week follow up the Veteran reported doing well and no issues. Slightly improved index finger passive range of motion was noted as well as stable sensation. He started range of motion therapy and nerve gliding. A one-month follow-up noted significantly improved range of motion and that nerve function would improve with time.

An August 2017 VA treatment record noted the Veteran reported doing well although his right index finger remained stiff. He denied any pain. He was able to make a finger with pulp to palm except for his index finger. Sensation was noted. He was able to demonstrate full extension of the right index finger. There was positive Tinel to the right index finger PIP. There was also some turgor returning between MCP and PIP with diminished PIP to DIP.

A November 2017 VA treatment record noted the volar incision extending from wrist crease to first webspace was well healed, the scar was soft, and there was no hypertrophy. The right index finger had greater than 90 degrees of flexion at PIP. He was able to pinch without difficulty and there was no two point discrimination of radial border of the index finger distal to incision (near MCP). Tinel was noted up to PIP of the right radial border of the index finger. He was most sensitive at the proximal transverse crease. There was an 8cm improvement from last evaluation.

A February 2019 VA treatment note showed the Veteran complained his finger was numb with little feeling and hurt when bending.

An April 2019 VA treatment record noted the Veteran reported recent gradual onset of dorsal right index finger pain with flexion along with decreased radial sensation to right index finger. Examination showed well healed scar, Tinels up to DIP, decreased SILT to radial aspect of right index finger, resolving hand atrophy, and positive crank and grind at DIP. It was suspected his pain was related to osteoarthritis of the PIP and DIP which was evidence on X-rays.

The Veteran was afforded a VA scars examination in August 2020. The examiner diagnosed a right palm scar and a right forearm scar due to his digital nerve reconstruction. The Veteran was also afforded a VA hand and fingers examination in August 2020. The examiner diagnosed injury of digital nerve right index finger, initial encounter.

The examiner opined it was at least as likely as not that the claimed disability of hand surgery was caused by or became worse as a result of the VA treatment at issue. The examiner reasoned the Veteran had a right-hand mass on the palmer aspect of the right hand. VA providers and the Veteran decided to proceed with resection of the right-hand mass in April 2015. The examiner noted the right-hand mass itself developed spontaneously, unrelated to any VA action or inaction. After the right-hand mass resection, the Veteran developed ongoing right-hand pain, tingling, and altered sensation in the right index finger, and limitations on active range of motion of the right index finger, ultimately diagnosed as adhesions affecting tendons and nerves in the right hand. As the Veteran's right-hand complaints failed to respond to other therapy, revision surgery was planned and accomplished in May 2017. The examiner noted the right index finger exploration, digital nerve reconstruction with PIN graft and integra nerve wrap were necessary due to complications from the original April 2015 right-hand mass resection.

The examiner then opined it was less likely than not that the additional disability resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. The examiner reasoned the Veteran required the April 2015 right hand mass resection due to a spontaneously developing mass on the palmar aspect of the right hand, unrelated to any VA action, inaction, or treatments. The right-hand surgery was not made necessary due to any carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. Likewise, the complications that developed due to the April 2015 hand surgery did not represent any carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. The examiner explained that the VA operative note from the April 2015 right hand mass resection indicated no complications during the procedure. All pre-operative and post-operative standards of care were met, based on the record. In the immediate post-operative period, the Veteran progressed as expected, with some pain and tingling noted in the right hand. Then, after two months post-operative, the noted pain in the right-hand, tingling and altered sensation in the right index finger, and limitations on active range of motion of the right index finger persisted, so occupational therapy and scar massage were initiated to improve symptoms and overall function. Despite the appropriate measures to resolve the right hand and finger symptoms and findings, the Veteran continued with pain, tingling, numbness, and limitations. As the Veteran had no immediate abnormalities after the April 2015 surgical procedure to remove the right hand mass, and as right hand adhesions were later identified as the cause for the Veteran's pain, tingling, and limitations on active range of motion of the right index finger, it cannot be established that any specific carelessness or negligence on the part of VA in the April 2015 surgery care resulted in the complications. The examiner noted the Veteran's adhesions resulting in tendon restrictions and digital nerve damage in the right hand developed over time related to scar formation, not due to any specific action or inaction on part of VA intraoperatively or post-operatively. The Veteran then developed pain in the right hand, tingling and altered sensation in the right index finger, and limitations on active range of motion of the right index finger as complications of the healing process after the April 2015 right-hand mass resection, not due to failure on part of VA. No carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel is identified with regard to Veteran's April 2015 right hand mass resection or its follow up.

Further, while the Veteran required the May 2017 right index finger exploration, digital nerve reconstruction with PIN graft and integra nerve wrap to resolve neuropathy and range of motion limitations due to adhesions following the original surgery in April 2015 for excision of right hand mass, the May 2017 hand procedure was not made necessary due to any carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. The Veteran developed complications following the April 2015 right hand mass resection, but as noted above, the complications did not develop due to any specific action or inaction on the part of VA. Therefore, the May 2017 right index finger exploration, digital nerve reconstruction with PIN graft and integra nerve wrap did not result from any carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. Furthermore, the Veteran's right-hand complaints and findings improved and/or resolved after the revision surgery in May 2017, so there was no evidence of any carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel.

The examiner also opined it was less likely than not that additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider. The examiner explained that once the Veteran presented to the VA with evidence of a mass on his right hand, surgery was a known possible remedy for that condition, so foreseeable and predictable. Likewise, additional surgery to the right hand, to correct or improve condition, is a known possible outcome after the original surgery in April 2015.

If a primary surgical procedure, here the April 2015 right-hand mass resection, fails to resolve the condition of concern or results in additional complications, then follow up procedures, including more extensive surgery, can be required. As repeat procedures and surgeries are a known risk after primary surgery, such risks are noted in the Informed Consent prior to surgeries as a foreseeable
have reasonably been foreseen by a reasonable healthcare provider. The examiner explained that once the Veteran presented to the VA with evidence of a mass on his right hand, surgery was a known possible remedy for that condition, so foreseeable and predictable. Likewise, additional surgery to the right hand, to correct or improve condition, is a known possible outcome after the original surgery in April 2015.

If a primary surgical procedure, here the April 2015 right-hand mass resection, fails to resolve the condition of concern or results in additional complications, then follow up procedures, including more extensive surgery, can be required. As repeat procedures and surgeries are a known risk after primary surgery, such risks are noted in the Informed Consent prior to surgeries as a foreseeable possible situation after surgery. Therefore, the need for additional right-hand surgery, specifically Veteran's May 2017 right index finger exploration, digital nerve reconstruction with PIN graft and integra nerve, was a known possible outcome after the original April 2015 right hand resection, was foreseeable to a reasonable healthcare provider as a possible complication.

The examiner additionally opined it was less likely than not that failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. The examiner explained the Veteran had hand surgery in April 2015 and May 2017 as appropriate management for the right-hand conditions at the time. The Veteran's right hand original condition, right hand mass, was readily diagnosed and resection planned and accomplished in April 2015. After the April 2015 right hand mass resection, the Veteran's right-hand pain, tingling and altered sensation in the right index finger, and limitations on active range of motion of the right index finger were identified and treated as soon as the complaints represented a persistent obstacle to healing. The Veteran then was re-evaluated for the right hand and revision surgery considered given the lack of improvement with any other therapies or with time. Revision surgery, specifically the May 2017 right index finger exploration, digital nerve reconstruction with PIN graft and integra nerve wrap, then was pursued as appropriate management for the right-hand adhesions and neuropathy after the original April 2015 right hand mass resection. Both of Veteran's right-hand surgeries then were accomplished with due care and speed to alleviate the given right-hand conditions at the time, as appropriate treatment strategies. No failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability of the right hand to continue to progress.

The examiner also opined the disability of the right hand/finger was at least as likely as not caused by the VA treatment at issue. The examiner reasoned the Veteran underwent resection of his right-hand mass in April 2015. After the surgery, the Veteran initially recovered well with the scar healing and functional improvement. However, as of the 2-month post-operative follow up, the Veteran had developed persistent pain issues in the right hand, tingling and altered sensation in the right index finger, and limitations on active range of motion of the right index finger. The examiner noted the Veteran had none of these symptoms or findings prior to or immediately after the April 2015 resection of right-hand mass but developed persistent issues as of 2 months post-operative. Therefore, the examiner found the Veteran's right hand/finger complications, including pain, tingling and numbness, and loss of range of motion developed due to the VA treatment at issue, the April 2015 resection of right-hand mass.

The examiner further opined it was less likely than not that the additional disability resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. The examiner reasoned the VA operative note from the April 2015 right hand mass resection indicated no complications during the procedure. All pre-operative and post-operative standards of care were met, based on the record. In the immediate post-operative period, the Veteran progressed as expected, with some pain and tingling noted in the right hand. Then, at 2 months post-operative, the noted pain issues in the right hand, tingling and altered sensation in the right index finger, and limitations on active range of motion of the right index finger persisted, so occupational therapy and scar massage initiated to improve symptoms and overall function. Despite the appropriate measures to resolve right hand/finger symptoms and findings, the Veteran continued with pain, tingling, and numbness limitations. As the Veteran had no immediate abnormalities after the April 2015 surgical procedure to remove the right hand mass, and as the Veteran's right hand adhesions were later identified as the cause for Veteran's pain, tingling, and limitations on active range of motion of the right index finger, it could not be established that any specific carelessness or negligence on part of VA resulted in the complications. The examiner noted that the
and altered sensation in the right index finger, and limitations on active range of motion of the right index finger persisted, so occupational therapy and scar massage initiated to improve symptoms and overall function. Despite the appropriate measures to resolve right hand/finger symptoms and findings, the Veteran continued with pain, tingling, and numbness limitations. As the Veteran had no immediate abnormalities after the April 2015 surgical procedure to remove the right hand mass, and as the Veteran's right hand adhesions were later identified as the cause for Veteran's pain, tingling, and limitations on active range of motion of the right index finger, it could not be established that any specific carelessness or negligence on part of VA resulted in the complications. The examiner noted that the Veteran's adhesions resulting in tendon restrictions and digital nerve damage in the right hand developed over time related to scar formation, not due to any specific action or inaction on part of VA intraoperatively or post-operatively. The Veteran then developed pain issues in the right hand, tingling and altered sensation in the right index finger, and limitations on active range of motion of the right index finger as complications of the healing process after the April 2015 right hand mass resection, not due to failure on part of VA. No carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel is identified with regard to Veteran's April 2015 right hand mass resection or its follow up.

The examiner also opined it was less likely than not that the additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider. The examiner reasoned that persistent pain, nerve or tendon damage, and altered or damaged hand function were all known risks of surgical procedures involving the hand. As known complications of the April 2015 right hand mass resection, the risks were discussed with Veteran during the informed consent process prior to procedure. Therefore, to have an outcome including pain issues in the right hand, tingling and altered sensation in the right index finger, and limitations on active range of motion of the right index finger was a foreseeable possible outcome, known to VA providers and communicated to the Veteran prior to the April 2015 right hand mass resection.

The examiner opined it was less likely than not that failure on the part of VA to timely diagnose and/or properly treat the right hand/finger disability allowed the disability to continue to progress. The examiner reasoned the Veteran was followed up regularly after the April 2015 resection of right-hand mass to monitor for appropriate healing and improvement. When the Veteran exhibited persistent symptoms as of the 2-month post-operative evaluation, including continued right-hand pain, tingling and altered sensation in the right index finger, and limitations on active range of motion of the right index finger, occupational therapy and scar massage were immediately recommended to improve symptoms and overall function. The Veteran continued to have right hand complaints despite occupational therapy and self-care and ultimately required revision surgery in May 2017 for resolution and/or improvement of the right-hand conditions. Therefore, though the Veteran's right hand/finger complaints and findings persisted, those complaints and findings persisted in spite of the VA appropriately identifying and managing the right-hand conditions after the April 2015 right hand mass resection, not due to any failure on VA part to diagnose and treat.

The examiner opined it was at least as likely as not that the scar of the right forearm was caused by the VA treatment at issue. The examiner reasoned All invasive surgical procedures cause some level of scarring at the point of entry. During the May 2017 revision surgery for right hand, the Veteran required a nerve graft to the digital nerve of right hand from the donor site, posterior interosseous nerve in right forearm. To accomplish the graft procedure, an incision was made in the right forearm, resulting in a scar of the right forearm. The Veteran's right forearm scar resulted from the May 2015 revision surgery, right index finger exploration, digital nerve reconstruction with PIN graft and integra nerve wrap, to resolve neuropathy and range of motion limitations following the original surgery in April 2015 for excision of right-hand mass, identified as ganglion cyst and lipoma. The examiner specified that the record did not support any actual disability associated with Veteran's right forearm scar. The right forearm scar has never been documented as painful, unstable, hypertrophied or contracted. Therefore, the right forearm scar did develop due to the VA treatment at issue, without any associated disability.

The examiner then opined it was less likely than not that the right forearm scar resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. The examiner reasoned scar formation was an inevitable outcome of invasive surgical procedures, even those accomplished with all care and precision possible. The Veteran's scar developed due to invasive surgical procedure as a matter of course,
identified as ganglion cyst and lipoma. The examiner specified that the record did not support any actual disability associated with Veteran's right forearm scar. The right forearm scar has never been documented as painful, unstable, hypertrophied or contracted. Therefore, the right forearm scar did develop due to the VA treatment at issue, without any associated disability.

The examiner then opined it was less likely than not that the right forearm scar resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. The examiner reasoned scar formation was an inevitable outcome of invasive surgical procedures, even those accomplished with all care and precision possible. The Veteran's scar developed due to invasive surgical procedure as a matter of course, not a matter of negligence or carelessness. There was no documented abnormal progression or deterioration of the right forearm scar. It was noted to be well healed over time. There was no evidence then that Veteran's right forearm scar developed or progressed, or conferred any chronic disability, due to carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel.

The examiner further opined it was less likely than not that the right forearm scar resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider. The examiner reasoned the VA providers documented that grafting may be required as part of the Veteran's May 2017 procedure. Therefore, scar formation, including at the donor site, would be expected. The Veteran was advised of the procedure details, including incisions that result in scars, as part of the informed consent process and pre-operative evaluation. The right forearm scar then developed as a natural and expected consequence of the May 2017 surgical procedure, right index finger exploration, digital nerve reconstruction with PIN graft and integra nerve wrap, to resolve neuropathy and range of motion limitations following the original April 2015 surgery for excision of right hand mass, identified as ganglion cyst and lipoma, foreseeable to a reasonable healthcare provider and communicated to the Veteran as a known risk of the procedure.

Finally, the examiner opined it was less likely than not that failure on the part of VA to timely diagnose and/or properly treat the claimed right forearm scar allowed the scar to continue to progress. The examiner reasoned the right forearm scar was naturally identified in the immediate post-operative evaluations as part of the May 2017 surgical process. The right forearm scar was monitored and appropriate healing noted. No further evaluation or treatment for the right forearm scar was required given that the scar itself healed without complications. VA identified the scar formation and monitored it for adequate healing as per standards of care, with no further treatment required. Therefore, the examiner found no failure on the part of VA to diagnose and/or manage right forearm scar.

The examiner opined it was at least as likely as not that the residuals status post right-hand surgery cyst removal index finger nerve damage and scarring to right forearm and right-hand palm was caused by or became worse as a result of the VA treatment at issue. The examiner reasoned with regard to right forearm scarring that all invasive surgical procedures cause some level of scarring at point of entry. After the April 2015 resection of right-hand mass, revision surgery was required in May 2017 to resolve neuropathy and range of motion. In May 2017, the Veteran required a nerve graft to the digital nerve of right hand from the donor site, posterior interosseous nerve in right forearm. To accomplish the graft procedure, an incision was made in the right forearm, resulting in a scar of the right forearm. The Veteran's right forearm scar resulted from the May 2017 revision surgery, right index finger exploration, digital nerve reconstruction with PIN graft and integra nerve wrap, to resolve neuropathy and range of motion limitations following the original April 2015 surgery for excision of right-hand mass, identified as ganglion cyst and lipoma.

With regard to other residuals, including finger nerve damage, the Veteran underwent resection of right-hand mass (on palmar aspect) in April 2015. The right-hand mass was identified on pathology as ganglion cyst and lipoma. After the surgery, the Veteran initially recovered well with the scar healing and functional improvement. However, as of the 2-month post-operative follow up, the Veteran had developed persistent pain issues in the right hand, tingling and altered sensation in the right index finger, and limitations on active range of motion of the right index finger. The Veteran had none of these symptoms or findings prior to or immediately after the April 2015 resection of right-hand mass but developed persistent issues as of 2 months post-operative. Therefore, the Veteran's right hand/finger complications, including pain, tingling and numbness, and loss of range of motion developed due to the VA treatment at issue, the April 2015 resection of right-hand mass. The examiner
surgery, the Veteran initially recovered well with the scar healing and functional improvement. However, as of the 2-month post-operative follow up, the Veteran had developed persistent pain issues in the right hand, tingling and altered sensation in the right index finger, and limitations on active range of motion of the right index finger. The Veteran had none of these symptoms or findings prior to or immediately after the April 2015 resection of right-hand mass but developed persistent issues as of 2 months post-operative. Therefore, the Veteran's right hand/finger complications, including pain, tingling and numbness, and loss of range of motion developed due to the VA treatment at issue, the April 2015 resection of right-hand mass. The examiner specifically noted the Veteran's right hand/finger complications, including pain, tingling and numbness, and loss of range of motion, diagnosed as adhesions and neuropathy following the April 2015 right hand mass resection, resolved or improved as a result of the revision surgery in May 2017.

The examiner further opined that it was less likely than not the additional disability resulted from the attending VA personnel's failure to follow the appropriate standard of care. The examiner reasoned the VA exhibited all appropriate standards of care in the management of Veteran's right-hand conditions, beginning with the April 2015 resection of right-hand mass as the correct option to remedy Veteran's original condition. The Veteran then had regular post-operative evaluations after the April 2015 surgery and occupational therapy/scar care as appropriate when complications of adhesions and neuropathy developed. When the Veteran's right-hand complaints failed to improve or resolve with any conservative therapies, the revision surgery was considered as the only remaining option for relief of adhesions and neuropathy. The May 2017 right index finger exploration, digital nerve reconstruction with PIN graft and integra nerve wrap was accomplished with good resolution and improvement in the right-hand conditions.

As noted above, scarring is an inevitable outcome for any invasive surgical technique, so the Veteran's scar of the right hand/palm and scar right forearm could not have been avoided with any treatment involving incisions to the skin. Skin was prepped and closed with appropriate protocols, so there is no evidence of any failure to meet standards of care of the skin prior to or after the surgical procedures.

The Veteran also opined it was less likely than not that the additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider. The examiner reasoned that all of the Veteran's residuals (scarring, neuropathy/finger nerve damage, loss of range of motion with adhesions, failure to improve the condition of concern, and need for repeat surgery) are known and common complications after hand surgery. As known possible outcomes after hand surgery, the Veteran's ultimate complications were discussed in the informed consent process prior to surgical procedures of the hand. The Veteran's residuals then were foreseeable by reasonable healthcare providers, including VA providers, communicated to Veteran prior to both hand surgeries.

The Veteran had hand surgery in April 2015 and May 2017 as appropriate management for the right-hand conditions at the time. The Veteran's right hand original condition, right hand mass, was readily diagnosed and resection planned and accomplished in April 2015. After the April 2015 mass resection, the Veteran's continued to have right hand pain, tingling and altered sensation in the right index finger, and limitations on active range of motion of the right index finger were identified and treated with occupational therapy and scar care as soon as the complaints represented a persistent obstacle to healing. The Veteran was then re-evaluated for the right hand and revision surgery was considered given the lack of improvement with any other therapies or with time. Revision surgery, specifically the May 2017 right index finger exploration, digital nerve reconstruction with PIN graft and integra nerve wrap, then was pursued as appropriate management for the right-hand adhesions and neuropathy after the original April 2015 right hand mass resection. Both of Veteran's right-hand surgeries then were accomplished with due care and speed to alleviate the given right-hand conditions at the time, as appropriate treatment strategies. No failure on the part of VA to
the right index finger were identified and treated with occupational therapy and scar care as soon as the complaints represented a persistent obstacle to healing. The Veteran was then re-evaluated for the right hand and revision surgery was considered given the lack of improvement with any other therapies or with time. Revision surgery, specifically the May 2017 right index finger exploration, digital nerve reconstruction with PIN graft and integra nerve wrap, then was pursued as appropriate management for the right-hand adhesions and neuropathy after the original April 2015 right hand mass resection. Both of Veteran's right-hand surgeries then were accomplished with due care and speed to alleviate the given right-hand conditions at the time, as appropriate treatment strategies. No failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress.

The examiner opined it was at least as likely as not that the residuals status post right-hand surgery cyst removal index finger nerve damage and scarring to right forearm and right-hand palm was caused by or became worse as a result of the VA treatment at issue. The examiner reasoned with regard to the right hand/palm scarring that all invasive surgical procedures cause some level of scarring at point of entry. The Veteran required removal of the mass on the palmar aspect (thenar eminence) of the right hand in 2015. To accomplish the removal of the right palm mass, an incision was made in the hand/palm, resulting in a scar of the right hand/palm. The Veteran's right hand/palm scar resulted from the April 2015 surgery for resection of right-hand mass, ultimately identified as ganglion cyst and lipoma. The examiner noted the Veteran's right hand/palm scar healed well, without documented pain or instability in the scar itself over time. The Veteran did develop adhesions and neuropathy (nerve damage) related to the right hand/palm scar, a common complication of scar formation.

The examiner opined it was less likely than not that the right hand/palm scar resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. The examiner reasoned that scar formation was an inevitable outcome of invasive surgical procedures, even those accomplished with all care and precision possible. The Veteran's scar developed due to invasive surgical procedure as a matter of course, not a matter of negligence or carelessness. Once the scar is established after incision, associated complications of adhesions, nerve or tendon entrapment, and inflammatory changes can develop due to multiple factors, generally unrelated to the initiating procedure itself. The examiner clarified that scar healing and progression, or complications have more to do with a complex interaction of a given individual's genetics, immune response, and other medical conditions than to do with the specific surgical procedure or execution of the same. The Veteran was instructed on care of the right hand/palm scar, and the Veteran attended occupational therapy sessions to mobilize the scar as well, all appropriate management strategies to promote scar healing and flexibility. Though the Veteran did develop complications associated with the right hand/palm scar, including adhesions and neuropathy, those complications developed in spite of the appropriate surgical and medical interventions per VA, not because of any failure on the part of VA. There was no evidence then that Veteran's right hand/palm scar developed or progressed due to carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel.

The examiner opined it was less likely than not that the right hand/pam scar resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider. The examiner reasoned that the VA providers were aware that resection of right-hand mass required incision into the skin of the right hand/palm. Therefore, scar formation in the right hand/palm would be expected. The Veteran was advised of the procedure details, including incisions that result in scars, as part of the informed consent process and pre-operative evaluation. The right-hand/palm scar then developed as a natural and expected consequence of the April 2015 surgical procedure for resection of right-hand mass, ultimately identified as ganglion cyst and lipoma, a consequence foreseeable to a reasonable healthcare provider and communicated to the Veteran as a known risk of the procedure.

The examiner opined it was less likely than not that failure on the part of VA to timely diagnose and/or properly treat the disease or disability (residuals) allowed the disease or disability to continue to progress. The examiner reasoned the Veteran's right-hand/palm scar was naturally identified in the immediate post-operative evaluations as part of the April 2015 surgical process. The right hand/palm scar was monitored and appropriate healing noted in multiple post-operative follow ups. When the Veteran presented then for the 2 month follow up evaluation, with continued pain and some limitations on active range of motion in the right index finger, appropriate measures initiated, including scar massage and occupational therapy. The VA identified right hand/palm scar formation and monitored for adequate healing as per standards of care and applied well established therapeutic processes to improve the scar and overall function post-operatively, with only some success. Though the Veteran did develop complications associated with the right hand/palm scar, including adhesions and neuropathy, those complications developed in spite of the appropriate surgical and medical interventions per VA, not because of any failure on the part of VA. No failure on part of VA to diagnose and/or manage right hand/palm scar was identified.

At the April 2025 Board hearing, the Veteran contended that his nerve was nicked due to lack of skill on the part of VA. The Veteran stated that he was told the doctor that performed the first surgery had been relieved. The Veteran further contended that the consent form did not include anything about the loss of sensation or lack of motion of a hand. The Veteran stated he had no problems with the forearm scar. The Veteran testified that Dr. H checked X-rays and told the Veteran they needed to take a nerve out of his forearm and replace it in his palm up to his index finger because it was cut out by the first surgeon, Dr. A. The Veteran further testified that Dr. H. alluded to Dr. A. no longer working for VA because of the way his surgery was handled, specifically that he did damage and did not report it. The Veteran stated that his right index finger caused him some pain, but mostly he had issue with the lack of sensation.

With regard to whether the Veteran incurred additional disability as a result of the April 2015 and May 2017 surgeries, the evidence shows the Veteran had ongoing right-hand pain, tingling, and altered sensation in the right index finger, and limitations on active range of motion of the right index finger, ultimately diagnosed as adhesions affecting tendons and nerves in the right hand as well as scars.

Nonetheless, the medical evidence reflects that the proximate cause of the Veteran's additional disability was not due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing surgical treatment. Specifically, in the August 2020 VA medical opinion, the examiner opined that the right finger disability, right palm scar, and right forearm scar did not result from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. The examiner explained that the VA operative note from the April 2015 right hand mass resection indicated no complications during the procedure. All pre-operative and post-operative standards of care were met, based on the record. In the immediate post-operative period, the Veteran progressed as expected, with some pain and tingling noted in the right hand. Then, after two months post-operative, the noted pain in the right-hand, tingling and altered sensation in the right index finger, and limitations on active range of motion of the right index finger persisted, so occupational therapy and scar massage were initiated to improve symptoms and overall function. Despite the appropriate measures to resolve the right hand and finger symptoms and findings, the Veteran continued with pain, tingling, numbness, and limitations. As the Veteran had no immediate abnormalities after the April 2015 surgical procedure to remove the right hand mass, and as right hand adhesions were later identified as the cause for the Veteran's pain, tingling, and limitations on active range of motion of the right index finger, it cannot be established that any specific carelessness or negligence on the part of VA in the April 2015 surgery care resulted in the complications. The examiner noted the Veteran's adhesions resulting in tendon restrictions and digital nerve damage in the right hand developed over time related to scar formation, not due to any specific action or inaction on part of VA intraoperatively or post-operatively.

To the extent the Veteran contends he was told by Dr. H. that Dr. A. would no longer be doing VA work, the Board notes that an April 2017 VA treatment record signed by Dr. H.
identified as the cause for the Veteran's pain, tingling, and limitations on active range of motion of the right index finger, it cannot be established that any specific carelessness or negligence on the part of VA in the April 2015 surgery care resulted in the complications. The examiner noted the Veteran's adhesions resulting in tendon restrictions and digital nerve damage in the right hand developed over time related to scar formation, not due to any specific action or inaction on part of VA intraoperatively or post-operatively.

To the extent the Veteran contends he was told by Dr. H. that Dr. A. would no longer be doing VA work, the Board notes that an April 2017 VA treatment record signed by Dr. H. noted tendon adhesions were noted with sensory nerve dysfunction along the radial aspect of the index finger. This was noted to likely represent nerve adhesions in the scar versus neuroma in continuity. This seems to corroborate the examiner's opinion that the Veteran's adhesions resulting in tendon restrictions and digital nerve damage in the right hand developed over time related to scar formation, not due to any specific action or inaction on part of VA intraoperatively or post-operatively. This evidence does not suggest that Dr. H. indicated any issue with the Veteran's surgery led to Dr. A. no longer doing work for VA.

Further, the medical evidence shows that the proximate cause of the Veteran's right-hand pain, tingling, and altered sensation in the right index finger, and limitations on active range of motion of the right index finger and scars were an event which was reasonably foreseeable. In this regard, the Veteran was informed of the risks of the excision, and the Veteran signed a consent form prior to the surgery that included tendon, nerve, or blood vessel injury, temporary or permanent numbness/weakness of the extremity, unsightly or painful scar that may limit range of motion or function, unexpected change in procedure at time of surgery, and less than complete recovery of normal functions or pain relief as known risks and side effects of the treatment/procedure. The August 2020 examiner provided the opinion that it was less likely than not that the additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider. The examiner reasoned that all of the Veteran's residuals (scarring, neuropathy/finger nerve damage, loss of range of motion with adhesions, failure to improve the condition of concern, and need for repeat surgery) are known and common complications after hand surgery. As known possible outcomes after hand surgery, the Veteran's ultimate complications were discussed in the informed consent process prior to surgical procedures of the hand. The Veteran's residuals then were foreseeable by reasonable healthcare providers, including VA providers, communicated to Veteran prior to both hand surgeries.

Although the Veteran asserts that the additional disability following surgery was due to VA carelessness, negligence, and/or lack of proper skill, the competent evidence of record does not support that assertion, and the Veteran does not possess the requisite medical training necessary to provide a competent opinion on this issue. The Veteran is competent to report observable symptoms that began after the surgery, but the record reflects that the Veteran's numbness and pain following surgery was a known risk, i.e. a reasonably foreseeable outcome, of that surgery. The evidence shows that this was stated as a risk as part of the Veteran's consent for the surgery. Furthermore, as noted above, the examiner persuasively opined that it is less likely than not that the additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider and the Board affords the opinion great probative weight.

In some instances, laypersons are competent to provide an opinion of a medical nature. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing an example at footnote 4 that a layperson would be competent to diagnose a simple condition such as a broken leg but not to diagnose a form of cancer); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi,16 Vet. App. 370 (2002). However, since the opinion in this case involves a technical conclusion regarding the ordinary standard of care and whether it was exercised, the medical opinion is more probative than the Veteran's lay assertions. The examiner has expertise, experience, education, and training that the Veteran is not shown to have. As such, the Veteran's opinion is outweighed by the other evidence of record.

In summary, the evidence of record reflects that the Veteran's claimed additional disabilities following the April 2015 right hand mass resection was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on
. Cir. 2006); Charles v. Principi,16 Vet. App. 370 (2002). However, since the opinion in this case involves a technical conclusion regarding the ordinary standard of care and whether it was exercised, the medical opinion is more probative than the Veteran's lay assertions. The examiner has expertise, experience, education, and training that the Veteran is not shown to have. As such, the Veteran's opinion is outweighed by the other evidence of record.

In summary, the evidence of record reflects that the Veteran's claimed additional disabilities following the April 2015 right hand mass resection was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA health care provider who conducted the surgery, nor were they an event that was not reasonably foreseeable. Accordingly, the evidence persuasively weighs against his claim for benefits under 38 U.S.C. § 1151. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied.

4. Entitlement to service connection for bilateral hearing loss

The Veteran contends he has hearing loss due to service, specifically due to noise exposure while performing duties as a boat instructor.

The Board notes that the Veteran was denied service connection for right ear hearing loss as it was shown in service but was not aggravated by service. The Veteran was denied service connection for left ear hearing loss as there was no link between his currently diagnosed left ear hearing loss to service.

Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment. 38 U.S.C. §§ 1111; 38 C.F.R. § 3.304(b).

If a preexisting disorder is noted upon entry into service, and the claimant brings a claim for service connection on the basis of aggravation under section 1153, the burden falls on the claimant to establish aggravation of the preexisting disorder. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. §§ 3.304, 3.306.

The burdens and evidentiary standard to determine whether conditions noted at entrance into service were aggravated by service are different from the burdens and evidentiary standard to determine whether conditions not noted at entrance into service were aggravated. If a preexisting condition noted at entrance into service is not shown to have as likely as not increased in severity during service, the analysis stops. Only if such condition is shown by an as likely as not standard to have increased in severity during service does the analysis continue. In such cases, the increase is presumed to have been due to service unless there is clear and unmistakable evidence that the increase during service was not beyond the natural progression of the condition. See 38 C.F.R. § 3.306.

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability 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 thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 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.

The Board notes the Veteran's enlistment examination includes two separate audiological evaluations. On the first audiological evaluation, pure tone thresholds, in decibels, were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 10 35 55 / 55

LEFT 15 5 5 / 20

On the second audiological evaluation, pure tone thresholds, in decibels, were as follows:

HERTZ

500 1000 2000
scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

The Board notes the Veteran's enlistment examination includes two separate audiological evaluations. On the first audiological evaluation, pure tone thresholds, in decibels, were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 10 35 55 / 55

LEFT 15 5 5 / 20

On the second audiological evaluation, pure tone thresholds, in decibels, were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 10 35 50 / 45

LEFT 5 5 5 / 15

As the Veteran had auditory thresholds over 40 decibels in the right ear at both 2000 Hz and 4000 Hz in both the first and second evaluations, the Veteran was shown to have right ear hearing loss on the entrance examination for service. Consequently, the presumption of soundness does not apply to his right ear hearing acuity.

On the authorized audiological evaluation in February 1976, pure tone thresholds, in decibels, were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 5 5 15 35 50

LEFT 5 0 0 0 10

The evaluator noted the Veteran had essentially normal hearing and a sensorineural hearing loss in high hertz right ear (mild to moderate).

The Veteran was afforded a VA examination in January 2020. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 25 60 65 70 70

LEFT 15 25 35 60 60

Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 88 in the left ear.

The examiner noted there was no permanent positive threshold shift greater than normal measurement variability at any frequency between 500 and 6000Hz for the right ear. The examiner opined the Veteran's right ear hearing loss was not at least as likely at not caused by or a result of an event in military service. The examiner reasoned that the Veteran's calibrated audiometrics for enlistment and separation for the right ear indicated a moderate hearing loss. The fact that there was not a significant change in thresholds did not support noise-induced hearing loss during service. Although the Veteran currently had a worse sensorineural hearing loss than at discharge, the examiner noted that based on current knowledge of acoustic trauma and the instantaneous or rapid development of noise-induced hearing loss there was no reasonable basis for delayed-onset hearing loss. The examiner also noted the Veteran had a history of noise exposure with his occupational activities with intermittent use of hearing protection. Therefore, it was the examiner's opinion that the Veteran's hearing loss in his right ear was less likely than not caused by or a result of noise during his military service.

The examiner also noted that the Veteran's right ear hearing loss existed prior to service. The examiner found the pre-existing hearing loss was not aggravated beyond normal progression in military service. The examiner reasoned that since audiometrics were similar without significant threshold changes at enlistment and separation for the right ear, the Veteran's pre-existing hearing loss was not aggravated beyond normal progression in the military.

The examiner noted the Veteran's left ear hearing loss did not exist prior to service. The examiner also found there was not a permanent positive threshold shift greater than normal measurement variability at any frequency between 500 and 6000 Hz for the left ear. The examiner opined that the Veteran's left ear hearing loss was not at least as likely as not caused by or a result of an event in military service. The examiner reasoned the Veteran's calibrated audiometrics for enlistment and separation indicated hearing to be within normal limits for the left ear with no significant shifts which did not support noise-induced hearing loss during service. Although the Veteran currently had sensorineural hearing loss, based on current knowledge of acoustic trauma and the instantaneous or rapid development of noise-induced hearing loss there was no reasonable basis for delayed-onset hearing loss. Therefore, it was the examiner's opinion that the Veteran's hearing loss in his left ear was less likely as not caused by or a result of noise exposure during military service.

At the April 2025 Board hearing, the Veteran's representative asserted that after a review of the Veteran's service treatment records, his entrance examination did not note anything marked for hearing loss. The Board notes, however, that the Veteran's
indicated hearing to be within normal limits for the left ear with no significant shifts which did not support noise-induced hearing loss during service. Although the Veteran currently had sensorineural hearing loss, based on current knowledge of acoustic trauma and the instantaneous or rapid development of noise-induced hearing loss there was no reasonable basis for delayed-onset hearing loss. Therefore, it was the examiner's opinion that the Veteran's hearing loss in his left ear was less likely as not caused by or a result of noise exposure during military service.

At the April 2025 Board hearing, the Veteran's representative asserted that after a review of the Veteran's service treatment records, his entrance examination did not note anything marked for hearing loss. The Board notes, however, that the Veteran's right ear hearing loss was noted as the Veteran had auditory thresholds over 40 decibels in the right ear at both 2000 Hz and 4000 Hz in both the first and second evaluations. While this was not a disqualifying defect or communicable disease, the right ear hearing loss was noted on the enlistment examination. The Veteran also submitted his 1973 report of medical history in which he indicated that he had never had a problem with his ears or hearing loss; however, as noted above, while the Veteran may not have noticed the right ear hearing loss at the time it was recorded on two separate evaluations prior to his entrance into military service.

The Board finds service connection is not warranted for right ear hearing loss. The Board finds the probative evidence indicates that there was not a worsening of the right ear hearing loss during service. Although the record demonstrates in-service noise exposure and reveals threshold shifts between entrance and separation, the probative evidence does not indicate that there was an increase in hearing impairment during service. As explained by the record, an increase in hearing impairment would require a significant or standard threshold shift in the right ear. No such shift is shown. Notably, there is no threshold shift of 15 or greater decibels at any frequency or average threshold shift across all frequencies of 10 decibels (even when considering the entrance examination thresholds under either standard).

To the extent the Veteran believes that his right ear hearing loss was aggravated by service, the record does not demonstrate that the has medical training. Therefore, he is not competent to provide an opinion in this case because it involves complex medical issues that go beyond a simple and immediately observable cause-and-effect relationship. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence.

Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for right ear hearing loss is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Having considered the medical and lay evidence of record, service connection for left ear hearing loss is not warranted on any basis. First, the evidence of record demonstrates that a hearing loss disability was not incurred during active-duty service and was not manifested to a compensable degree within one year of separation from active-duty service. Notably, the in-service audiograms demonstrated normal left ear hearing for VA purposes with no significant threshold shift in hearing acuity, i.e. that beyond normal measurement variability.

The Board finds that there is no credible evidence of a continuity of left ear hearing loss symptomatology that would support the conclusion that chronic left ear hearing loss manifested in service or within one year of separation from service and continued until he filed his service connection claim. Based on these facts, service connection for left ear hearing loss is not warranted on a presumptive basis under the provisions of 38 C.F.R. § 3.309(a) relating to chronic diseases.

Finally, the January 2020 VA opinion is probative and persuasive because it was based on a review of the claims file and supported by an articulated medical explanation that is consistent with the remaining records. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). The audiologist indicated that because there was no significant threshold shift in left ear hearing acuity during the years the Veteran was exposed to hazardous noise, there was no medically sound basis to attribute the left ear hearing loss to the noise exposure from many years earlier. As such, the Board continues to find that the January 2020 VA examiner's opinion is adequate and is afforded high probative weight
by an articulated medical explanation that is consistent with the remaining records. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). The audiologist indicated that because there was no significant threshold shift in left ear hearing acuity during the years the Veteran was exposed to hazardous noise, there was no medically sound basis to attribute the left ear hearing loss to the noise exposure from many years earlier. As such, the Board continues to find that the January 2020 VA examiner's opinion is adequate and is afforded high probative weight.

Last, there is no medical opinion in evidence to the contrary. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for left ear hearing loss is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

5. Entitlement to service connection for tinnitus

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including organic diseases of the nervous system (to include tinnitus), may be presumed to have been incurred during service if manifested to a compensable degree within

one year of separation from active service. 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease is not shown to be chronic during service or within the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b).

The Veteran seeks service connection for tinnitus and asserts that his tinnitus began as a result of his noise exposure while working as an instructor of ship handling and navigation working on boats in service. A review of the Veteran's DD Form 214 shows his military occupational specialty (MOS) was as a watercraft operator, which is associated with a moderate probability for hazardous noise exposure. Therefore, the Board concedes the Veteran was exposed to hazardous noise in service.

It is also not in dispute that the Veteran has tinnitus, as the competent medical evidence of record documents a current diagnosis for recurrent tinnitus. See January 2020 VA Examination report. Accordingly, what must still be shown to establish service connection for tinnitus is a nexus to service.

After a thorough review of the record, the Board finds that the competent evidence of record reasonably supports the Veteran's claim that he has had tinnitus since service. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). In that regard, the Board notes that the Veteran asserts that his tinnitus began while he was in service and continued since.

The Board acknowledges the negative nexus opinions from the January 2020 VA examiner. Significantly, however, the examiner's opinion was based primarily on a finding that the Veteran only noted onset was "years ago" and did not specifically state it began during service at the time of examination. The Board does not find this persuasive as the Veteran later clarified that his tinnitus began while in service.

In sum, the Board finds that the evidence is at least in equipoise as to whether the requisite elements of service connection for tinnitus are met. The Veteran has a current disability of tinnitus, he sustained noise trauma during active service, and there is competent and credible evidence establishing a link between the Veteran's current tinnitus and active service. Accordingly, service connection for tinnitus is warranted.

MARJORIE A. AUER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Gastoukian, Kelly

The Board's decision in this case
service at the time of examination. The Board does not find this persuasive as the Veteran later clarified that his tinnitus began while in service.

MARJORIE A. AUER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Gastoukian, Kelly

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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