HEARING LOSS

S.C. KREMBS · 2026 · Case ID: A26040229

MIXED

Summary

The veteran served in the Army from March 1981 to September 1981, with subsequent service in the Army National Guard and Reserve until June 2000. The veteran appealed the June 2020 rating decision denying service connection for bilateral hearing loss, tinnitus, foot fungus, skin rash, neck condition, and low back condition. The Board granted service connection for tinnitus and foot fungus, finding that the evidence was in approximate balance and resolving doubt in the veteran's favor. The Board denied service connection for bilateral hearing loss, concluding that the veteran's hearing did not meet VA criteria for disability, despite his MOS as a cannon crewmember and claims of noise exposure. The Board noted that while some service treatment records were unavailable, the available VA audiological testing consistently showed hearing thresholds that did not meet VA's disability criteria. The appeal for skin rash, neck condition, and low back condition was remanded due to duty to assist errors, including the failure to obtain necessary military personnel and treatment records, a TERA memorandum, and to provide notice of the right to a hearing. The VA examiner also failed to address the veteran's contentions regarding the skin rash, low back, and neck conditions, and did not provide a nexus opinion for these issues.

Rationale

No current bilateral hearing loss meeting VA criteria; In-service audiograms did not show hearing loss; VA audiological testing consistently showed hearing thresholds below VA criteria

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210429-156083

Full Decision Text

Citation Nr: A26040229
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 210429-156083
DATE: April 29, 2026

ORDER

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is granted.

Service connection for onychomycosis (foot fungus) is granted.

REMANDED

Service connection for a skin rash is remanded.

Service connection for a neck condition is remanded.

Service connection for a low back condition is remanded.

FINDINGS OF FACT

1. The Veteran does not have bilateral hearing loss that meets VA criteria. See April 2015 and March 2020 VA Medical Opinions.

2. The tinnitus was caused by hazardous noise exposure in service.

3. The foot fungus condition had its onset during service. See June 2015 VA Medical Opinion.

CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral hearing loss are not met. 38?U.S.C. §§?1110, 1131, 1111, 5107(b); 38?C.F.R. §§?3.102, 3.303, 3.385.

2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

3. The criteria for service connection for a foot fungus condition have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1981 to September 1981 and December 1990 to June 1991 with additional periods of service in the Army National Guard and the Army Reserve from June 1991 to June 2000. This matter comes before the Board of Veteran's Appeal (Board) on appeal from a June 2020 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

As background, in April 2015, the RO denied service connection for tinnitus, hearing loss, foot fungus, neck pain, low back pain, and a skin condition. This decision became final. Subsequently, in February 2020, the Veteran submitted a VA Form VA Form 20-0995 Supplemental Claim Application. In June 2020, the RO again denied these claims. In response, in April 2021, the Veteran filed his VA Form 10182 Decision Review Request: Board Appeal and selected the Hearing docket. However, in a November 2024 statement, the hearing request was withdrawn by the Veteran.

Based upon the selection of the Hearing docket, the Board may consider the evidence of record as of June 11, 2020-the date of issuance of the rating decision on appeal, and evidence submitted at or within 90 days of the November 12, 2024 withdrawal of the Board hearing request. See 38 C.F.R. §§ 20.302(b). If the Veteran submitted evidence that was added to the record after June 11, 2020 and before the November 19, 2024 Board hearing, or more than 90 days following the withdrawal of the hearing request, the Board did not consider it.

Further, in April 2021, the Veteran was informed that he had a year from the date his rating decision was mailed to him or within 60 days of the date the Board received his NOD to switch his Board review option. As it has been more than 60 days since the letter was mailed to him or more than a year since the rating decision on appeal was mailed to him, he is precluded from switching Board dockets. Accordingly, the Board will adjudicate this appeal.

As a final introductory matter, an appellant has 90 days following the submission of a NOD, or up to and including the date the Board issues a decision, whichever comes first, to change representation for any reason. 38 C.F.R. § 20.1304(a). Additionally, if a change in representation is requested more than 90 days after certification, the appellant must show good cause for the change. 38 C.F.R. § 20.1304(b). Here, in December 2019, the Veteran appointed the Tennessee Department of Veterans Services as his representative. See December 2019 VA Form 21-22. After the April 2021 NOD submission, the Veteran received a letter from the Board that informed him that his case was formally placed on the Board's Hearing docket, and that he had 90 days from the submission of the NOD or until the Board issued a decision to request a change in representation, whichever comes first. However, in February 2022, more than 90 days after the NOD was submitted, the Veteran submitted a VA Form 21-22a appointing Mark A. Dunham as his representative. As no good cause was shown for the untimely appointment of this representative, the Board is denying the Veteran's appointment of Mark A. Dunham, for this appeal only. See 38 C.F.R. § 20.1304(b). Accordingly, the Tennessee Department of Veterans Services will remain the Veteran's representative for this appeal only.

Service Connection

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).

Service connection may also be granted through the application of statutory presumptions for chronic conditions. See 38 U.S.C. §§ 1101(3), 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303 (b), 3.307(a)(3), 3.309(a). Arthritis is included under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the claimant's separation from service. 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1336-38. The application of these presumptions operates to satisfy the "in-service incurrence or aggravation" element and establish a nexus between service and a current disability, which must be found before entitlement to service connection can be granted.

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107(b); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has actually observed and is within the realm of his or her personal knowledge).

Service Connection - Bilateral Hearing Loss

As indicated above in the Conclusions of Law section, the Board finds that service connection for bilateral hearing loss is not warranted. Accordingly, to this extent, the Board denies the Veteran's appeal.

At the outset, the Board notes that only limited service records are available for review. In April 2021, the RO informed the Veteran that the service treatment records from March 1981 to September 1981 could not be located. See April 2012 Correspondence. When there is evidence that a Veteran's service records have been lost or destroyed, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist a claimant
realm of his or her personal knowledge).

Service Connection - Bilateral Hearing Loss

Turning to the governing regulations for hearing loss, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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. "When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5?Vet. App.?155, 160 (1993).

Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38?U.S.C. §§?1101, 1112; 38?C.F.R. §§?3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability.

Here, the Veteran asserts that he developed bilateral hearing loss as a result of noise exposure associated with his MOS as a cannon crewmember. See April 2020 VA form 21-4138. He contends that his audiological records from the Tennessee VA treatment facility show that his hearing loss is severe enough to require hearing aids, so his hearing loss should be severe enough for VA to grant service connection for this condition. Id. However, turning to the medical evidence of record, neither the Veteran's service treatment records (STRs), nor post-service treatment records contain a diagnosis of bilateral hearing loss that meets the criteria enumerated in 38 C.F.R. § 3.385. Specifically, the April 2015 VA audiologist opined that the Veteran had sensorineural hearing loss only in the frequency range of 6000 Hz and higher in the right ear. This clinician opined that he had normal hearing in the left ear. During the examination, the VA examiner documented Maryland CNC speech discrimination scores of 98 percent in both ears and the following pure tone thresholds, in decibels, were documented:

Right Ear

500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz

10 5 5 0 25

Left Ear

500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz

5 5 5 0 20

The results from the VA audiological examination demonstrate that the Veteran does not have a bilateral hearing loss disability for VA compensation purposes at this time. Additionally, his in-service audiograms also do not show any evidence or diagnosis of a hearing loss disability. See February 1989, August 1991, and December 1990 STRs. Additionally, his post-service treatment records conflict with the findings of the VA examinations. In this regard, the June 2018 VA treating clinician found that he had mild sensorineural hearing loss from 4000 Hz to 8000 Hz bilaterally. See June 2018 VA Treatment Record. Additionally, the February 2019 VA treating clinician noted that he had mild high frequency sensorineural hearing loss in each ear, but there is no accompanying audiogram. The Board has considered remanding for the RO to attempt to obtain these audiograms, but finds that the March 2020 VA audiological examination again confirms that the Veteran does not have hearing loss for VA purposes. Specifically, the March 2020 VA audiologist opined that he had sensorineural hearing loss in the frequency range of 6000 Hz and higher in both ears. During the examination, the VA examiner documented Maryland CNC speech discrimination scores of 100 percent in both ears and the following pure tone thresholds, in decibels, were documented:

Right Ear

500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz

20 15 10 10 25

Left Ear

500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz

15 20 5 5 20

Based on these results, the Board acknowledges the VA treating clinician's finding that he had mild high frequency sensorineural hearing loss in each ear, but the March 2020 VA audiological demonstrates that the hearing loss does not meet VA's threshold criteria for hearing loss. Specifically, the audiological reports do not show that the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. Therefore, while the Veteran's MOS as a canon crewmember had a high probability for hazardous noise, he is not competent to state that the severity of his bilateral hearing loss meets VA disability criteria. This issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).

In sum, evidence of a current disability is necessary before service connection may be granted, and there is no evidence the Veteran has a current bilateral hearing loss disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement to service-connected disease or injury where such incidents have resulted in a disability....in the absence of proof of a present disability there can be no valid claim.") see also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes.) Therefore, the Board concludes that the evidence in this case is neither evenly nor approximately balanced. Rather, it persuasively weighs against service connection. The benefit of the doubt doctrine (38 C.F.R. § U.S.C. § 5107(b)) is therefore not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application). Thus, the appeal must be denied.

The Veteran has not established that he has a current disability, so the Board finds that it need not address the other requirements of service connection (in-service incurrence or aggravation of a disease or injury, or nexus between the claimed in-service disease or injury and the current disability.

As a final note, the Board acknowledges that there may be missing service treatment records and military personnel records. However, the Board placed significant probative weight on VA audiological testing results showing that he does not have hearing loss for VA purposes. The
. Cir. 2021) (en banc) (only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application). Thus, the appeal must be denied.

As a final note, the Board acknowledges that there may be missing service treatment records and military personnel records. However, the Board placed significant probative weight on VA audiological testing results showing that he does not have hearing loss for VA purposes. The Board finds that the Veteran's service records are less probative in determining whether he has current hearing loss for VA purposes. Therefore, the Board proceeded with adjudicating this issue.

Service Connection - Tinnitus

As indicated above in the Conclusions of Law section, the Board finds that service connection for tinnitus is warranted. Accordingly, the Board grants the Veteran's claim.

After resolving doubt in favor of the Veteran, the Board finds that the criteria for service connection for tinnitus are met. There is no dispute that the first criterion for service connection for tinnitus is met. The Board also finds that the Veteran was exposed to hazardous noise in service based on his MOS. At issue, then, is whether a nexus between Veteran's active-duty service and tinnitus has been established. Weighing against the finding of a nexus between tinnitus and his active-duty service is the April 2015 and March 2020 VA opinions, and weighing in favor of nexus are the Veteran's lay statements. Of note, as a layperson, the Veteran is competent to report on all things which he has personal knowledge derived from his own senses, including discussing the onset of the continuous high pitch noise in his ears and the continuation after service, and the Board finds his statements in this regard credible. See Layno v. Brown, 6?Vet. App.?465, 470 (1994). Based on the foregoing, the Board finds that a nexus has been established between the Veteran's tinnitus and service has been established.

In sum, the Board finds that there is an approximate balance of evidence as to whether tinnitus is related to the Veteran's service. Accordingly, any doubt is resolved in the Veteran's favor, and the criteria for establishing service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Service Connection - Foot Fungus

As indicated above in the Conclusions of Law section, the Board finds that service connection for a foot fungus condition is warranted. Accordingly, to this extent, the Board grants the Veteran's appeal.

Here, the Veteran contended that the foot fungus condition began in the 1990s. See June 2015 VA Medical Opinion. After resolving doubt in favor of the Veteran, the Board finds that the criteria for service connection for the foot fungus condition are met. There is no dispute that the first criterion for service connection for the foot fungus is met. The Board also finds that the Veteran reported an onset of the condition during his active-duty service. At issue, then, is whether a nexus between Veteran's active-duty service and the foot fungus condition has been established. Weighing against the finding of a nexus between tinnitus and his active-duty service is the March 2020 VA opinion, and weighing in favor of nexus are the Veteran's lay statements. Of note, as a layperson, the Veteran is competent to report on all things which he has personal knowledge derived from his own senses, including discussing the onset of the continuous foot fungus symptoms and the continuation after service, and the Board finds his statements in this regard credible. See Layno v. Brown, 6?Vet. App.?465, 470 (1994). Based on the foregoing, the Board finds that a nexus has been established between the foot fungus condition and service has been established.

In sum, the Board finds that there is an approximate balance of evidence as to whether the foot fungus condition is related to the Veteran's service. Accordingly, any doubt is resolved in the Veteran's favor, and the criteria for establishing service connection for the foot fungus condition are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

REASONS FOR REMAND

After reviewing the evidence of record
Based on the foregoing, the Board finds that a nexus has been established between the foot fungus condition and service has been established.

REASONS FOR REMAND

After reviewing the evidence of record, the Board finds that a remand is required to correct a duty to assist error that occurred prior to the issuance of the June 2020 rating decision.

Here, the record shows that the Veteran served in the Army Reserve from June 1991 to June 2000. However, the claims file does not include military personnel records and service treatment records dated after February 1994. See Military Personnel Records received in March 2015. Under 38 C.F.R. § 3.159(c)(2), VA must make as many requests as necessary to obtain relevant records from a Federal department or agency, including military records. Here, the record does not show that the RO attempted to obtain records after dated after February 1994. It is unclear whether these records exist, but the RO must make as many requests as necessary to obtain such records. As such, the Board finds that a remand is required.

Additionally, the March 2020 VA examiner provided negative nexus opinions because the low back, neck, and acne vulgaris conditions have clear etiologies, and there was evidence showing a relationship between an exposure in service and the conditions. However, the RO failed to obtain a toxic exposure risk activity (TERA) memorandum that defines which toxins the Veteran was exposed to prior to issuing the rating decision on appeal. This memorandum allows Board to assess whether the opinion regarding exposures is adequate. Additionally, the examiner failed to address the Veteran's skin rash, which was repeatedly treated after service. See VA Treatment Records. Further, the examiner failed to address whether the low back and neck conditions were caused by service, as contended by the Veteran. See March 2020 VA Form 21-4138. Accordingly, as the VA examiner failed to address the Veteran's theory of entitlement and the RO failed to obtain a TERA Memorandum, the Board finds that these are pre-decisional duty to assist errors. Therefore, a remand is required.

Lastly, the Board finds that a remand is required to correct an error committed by the Agency of Original Jurisdiction (AOJ) in satisfying a regulatory or statutory duty pursuant to 38 C.F.R. § 20.802(a). Under 38 C.F.R. § 3.103(b)(1), VA is required to provide notice of every decision made by VA affecting the payment of benefits or the granting of relief, including notice of the right to a hearing. Claimants and their representatives are entitled to notice of the right to a hearing on any issue involved in the claim as provided in paragraph (d). See 38 C.F.R. § 3.103(b)(1). Additionally, under 38 C.F.R. § 3.103(d)(1), "upon request, a claimant is entitled to a hearing on any issue involved in a claim within the purview of part 3 of this chapter before VA issues notice of a decision on an initial or supplemental claim."

Here, the AOJ failed to notify the Veteran of his right to a hearing before the June 2020 rating decision was issued, which was during a period when VA had a duty to assist in substantiating his claim. See 38 U.S.C. § 5103A(e)(1); 38 C.F.R. § 20.802(a). As he was entitled to notice of his right to a hearing on his initial claim, this prevented the Veteran from making an informed decision with respect to the decision review options available to him. Accordingly, the Board finds that a remand is required pursuant to 38 C.F.R. § 20.802(a), so the AOJ can provide the Veteran with notice concerning his right to a hearing, and an opportunity for a hearing before the AOJ.

Based on the foregoing, the Board finds that a remand is warranted. In ordering?a?remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports.?Rather, the Board is merely requesting that the?examiner?on remand consider the Veteran's own descriptions of the history of the skin rash, low back
Veteran from making an informed decision with respect to the decision review options available to him. Accordingly, the Board finds that a remand is required pursuant to 38 C.F.R. § 20.802(a), so the AOJ can provide the Veteran with notice concerning his right to a hearing, and an opportunity for a hearing before the AOJ.

The matters are REMANDED for the following action:

1. Please provide the Veteran and his representative with notice of his option to participate in a pre-decisional hearing before a decision is issued on his supplemental claim for a compensable rating for his hypothyroidism and allow a reasonable period of time for him to respond and request a hearing prior to readjudicating the claims.

After providing the Veteran and his representative with notice of the abovementioned pre-decisional hearing and holding the hearing if requested, undertake any additional necessary development if necessary.

2. Conduct appropriate development to obtain the military personnel records and service treatment records from February 1994 to June 2000.

Please document all steps taken and if necessary, advise the Veteran that the Department of Veterans Affairs was unable to obtain these records.

3. The RO must obtain a TERA memorandum documenting the Veteran's in-service exposures/

4. After the tasks listed above are completed, the RO should send the claims file to an appropriate VA clinician to provide an addendum that determines whether the skin rash, low back, and neck conditions had their onset in service. The claims file, including a copy of this Remand, must be made available to and be reviewed by the examiner in conjunction with the examination. If a clinical evaluation is deemed necessary to answer the questions presented, one should be scheduled. A notation indicating that the claims file and remand was reviewed should be included in the examination report. Following review of the file and this remand, the examiner is to address the following:

(a.) Please state at least as likely as not (approximately 50 percent probability or nearly 50 percent probability) that the skin rash had its onset during service or within a year from separation from service. Please explain why or why not.

(b.) Please state at least as likely as not (approximately 50 percent probability or nearly 50 percent probability) that the low back condition had its onset during service or within a year from separation from service. Please explain why or why not.

(c.) Please state at least as likely as not (approximately 50 percent probability or nearly 50 percent probability) that the neck condition had its onset during service. Please explain why or why not.

In providing the requested opinions, consider the Veteran's description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current condition, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or are they implausible?

Please keep in mind that the phrase "at least as likely as not" means that "the favorable and unfavorable evidence is in approximate balance or is nearly equal.

(The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements)

A discussion of the underlying reasons for any opinion expressed must be included in your report, to include reference to pertinent evidence of record and?medical literature?or treatises where appropriate. If you cannot provide the requested opinion without resorting to speculation, please expressly indicate this and state why that is so (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.).

S.C. Krembs

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board S. Foster, Counsel

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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