HEARING LOSS

G. E. WILKERSON · 2026 · Case ID: A26040072

MIXED

Summary

The veteran, who served from February 2003 to April 2004, including service in Southwest Asia, appeals the denial of service connection for bilateral hearing loss and the adequacy of VA examinations for right shoulder and low back disabilities. The Board denied service connection for bilateral hearing loss, finding that the veteran's service treatment records were silent for any complaints, treatment, or diagnosis of hearing loss, and that recent VA audiometric testing did not meet the threshold for a disability. The Board noted the veteran's assertion of worsening hearing but found no new findings to support a remand for duty to assist error. The Board also found the benefit-of-the-doubt rule inapplicable as the evidence was not in approximate balance. The claims for right shoulder and low back disabilities were remanded due to inadequate VA examinations. The Board found that the veteran's lay statements regarding the onset and continuity of symptoms for these conditions warranted a VA examination to determine the nature and etiology of the disabilities. Furthermore, the existing medical opinion on secondary service connection for the shoulder and back claims was deemed inadequate, lacking sufficient rationale regarding aggravation and direct service connection. The Board will require new examinations to address these issues.

Rationale

Service treatment records silent for hearing loss; Recent VA audiometric testing did not meet disability threshold; Veteran's assertion of worsening hearing not supported by new findings

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210827-181046

Full Decision Text

Citation Nr: A26040072
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 210827-181046
DATE: April 29, 2026

ORDER

Entitlement to service connection for bilateral hearing loss is denied.

REMANDED

Entitlement to service connection for a right shoulder disability is remanded.

Entitlement to service connection for a low back disability is remanded.

FINDING OF FACT

The Veteran does not have bilateral hearing loss that had its onset during active service or is otherwise etiologically related to such service; and no such disability is shown to have been manifest within a presumptive period.

CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have not been met. 38?U.S.C. §§?1110, 1112, 5107 (2024); 38?C.F.R. §§?3.303, 3.307, 3.309, 3.385 (2025).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active military service from February 2003 to April 2004, to include service in Southwest Asia.

This case comes before the Board of Veterans' Appeals (Board) an August 2020 Higher-Level Review (HLR) rating decision f a Department of Veterans Affairs (VA) agency of original?jurisdiction?(AOJ).??

In the?August?2021?VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held?before a Veterans Law Judge?on?December 9, 2024.?Therefore, the Board may only consider the evidence of record at the time of the April 2019 and February 2020?AOJ decisions, which were subsequently subject to higher level review, as well as any evidence?submitted?by the Veteran or?his?representative at the hearing or within 90 days following the hearing. 38 C.F.R. §?20.302(a). If evidence was?submitted?either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§?20.300, 20.302(a), 20.801.?

The Board notes that while the Veteran filed for higher level review of the April 2019 rating decision as to service connection for hearing loss, given the intervening supplemental claim decision on hearing loss with additional evidence considered, the it has interpreted the claim for higher level review as to this issue as seeking review of the February 2020 decision instead. Although the AOJ determined that new and relevant evidence had not been received to readjudicate the previously-denied hearing loss claim in both the April 2019 and February 2020 decisions, the AOJ proceeded to adjudicate the claim on the merits in the August 2020 decision on appeal. This is essentially a favorable finding that new and relevant evidence had been received to readjudicate the claim, and the Board will proceed with a decision on the merits.

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, considering the new evidence in addition to the evidence previously considered.?Id.?Specific instructions for filing a Supplemental Claim are included with this decision.?

However, because the Board is remanding claims of entitlement to service connection for right shoulder and low back disabilities, any evidence that the Board could not consider will be reviewed by the AOJ in the adjudication of those claims.?

Service?Connection?-?Bilateral?Hearing?Loss?

The Veteran?asserts?that?his?bilateral hearing loss is related to active service.??

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004
?that?his?bilateral hearing loss is related to active service.??

Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service.?Brammer v.?Derwinski,?3 Vet. App. 223, 225?(1992). In?McClain?v. Nicholson,?21 Vet. App. 319, 321?(2007), the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he or she files a claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in?Romanowsky v. Shinseki,?26 Vet. App. 289?(2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency.?

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, 4000 Hertz (Hz) is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hz 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.???

STRs are silent for any complaints of, treatment for, or a diagnosis of bilateral hearing loss disability for VA purposes while the Veteran was in active service.?See?38?C.F.R. §?3.385.??There are no post-service audiometric findings confirming a hearing loss disability purposes.

Audiometric testing conducted during a?February?2020?VA examination did not show that the Veteran has hearing loss meeting these auditory thresholds in either ear, and speech discrimination scores were 96 percent in each ear.

The Board has considered the Veteran's statements to the effect that he experiences hearing loss; however, the objective evidence of record does not reflect that the Veteran has met the threshold of hearing loss required to be considered a disability in either ear for VA compensation purposes. 38 C.F.R. § 3.385.

The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1110. See also McClain, 21 Vet. App. at 321. Therefore, where, as here, competent evidence indicates that the Veteran does not have the disability for which service connection is sought, there can be no valid claim for service connection for the disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

As the Veteran does not have a current disability, the Board will not address the remaining criteria for service connection and whether the claimed disability is related to service.??

The Board has considered the Veteran's report in the 2024 Board hearing that his hearing has worsened and may now qualify as a current disability; however, he has not submitted any new auditory findings, and this assertion, raised after the rating decision on appeal, does not provide a basis to remand for pre-decisional duty to assist error.

Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance, and entitlement to service connection for bilateral hearing loss is not?warranted. 38?U.S.C. §?5107?(b);?Lynch v. McDonough, 21 F.4th 776, 781-82 (2021
has considered the Veteran's report in the 2024 Board hearing that his hearing has worsened and may now qualify as a current disability; however, he has not submitted any new auditory findings, and this assertion, raised after the rating decision on appeal, does not provide a basis to remand for pre-decisional duty to assist error.

REASONS FOR REMAND

Service Connection - Right Shoulder Disability & Back Disability

The Veteran asserts that his right shoulder and back disability were caused by active service. Specifically, the Veteran stated that his shoulder and back were injured in an improvised explosive device (IED) explosion during service and that his symptoms have continued and worsened since that time. The Veteran also asserts that his low back disability is secondary to his service-connected neck disability, and that his right shoulder disability is due to overuse caused by his service-connected left shoulder disability.

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

Review of the record shows that no medical opinions have been obtained to address direct service connection. In light of?the Veteran's diagnoses of a current disability and his lay statements regarding the onset and continuity of his symptoms, the Board finds that the Veteran should have been afforded a VA examination to?determine?the nature and etiology of the claimed right shoulder and back disabilities.

Moreover, while an opinion on secondary service connection has been obtained, the rationale provided was not adequate. The April 2019 VA examiner found no relationship between the claimed back and shoulder disabilities and the service-connected neck and left shoulder disabilities as they were "separate disorders" and there was no medical literature in support of a relationship. No other reasoning was provided, including discussion on whether the Veteran's overuse of his right shoulder due to the service-connect left shoulder disability. In addition, the Board notes that the April 2018 VA examiner did not opine as to whether a service-connected disability aggravated the claimed disabilities. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (Where an examiner finds that a service-connected disability did not cause a claimed disorder, it is not clear that aggravation has been addressed).

Accordingly, the Board finds this opinion inadequate to decide the claims. The failure to provide the Veteran adequate examination prior to the decision constitutes a pre-decisional duty to assist error. See 38 C.F.R. § 20.802. Therefore, remand is required for an additional examination and opinion. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Barr, 21 Vet. App. at 312.

The matters are REMANDED for the following action:

1. Schedule the Veteran for an examination by an examiner with?appropriate expertise?to?determine?the nature and etiology of the claimed right shoulder disability. The claims file must be made available to and reviewed by the examiner. Any indicated tests and studies must be performed.?

Based on the examination results and review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher)?that the claimed right shoulder disability 1) had its onset during the Veteran's active service or is otherwise etiologically related to such service; or 2) was caused by or aggravated (increased in severity) by the Veteran's service-connected left shoulder disability.

The examiner is also advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion.

The examiner should set forth all examination findings, together with the complete rationale for the conclusions reached.

2. Schedule the Veteran for an examination by an examiner with?appropriate expertise?to?determine?the nature and etiology of the claimed back disability. The claims file must be made available to and reviewed by the examiner. Any indicated tests and studies must be performed.?

Based on the examination results and review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher)?that the claimed back disability had its onset during the Veteran's active service or is otherwise et
with the other evidence of record, in formulating the requested opinion.

The examiner should set forth all examination findings, together with the complete rationale for the conclusions reached.

Based on the examination results and review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher)?that the claimed back disability had its onset during the Veteran's active service or is otherwise etiologically related to such service; or 2) was caused by or aggravated (increased in severity) by the Veteran's service-connected neck/cervical spine disability.

The examiner should set forth all examination findings, together with the complete rationale for the conclusions reached.

G. E. Wilkerson

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board UmezEronini, Ikechukwu

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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