HEARING LOSS

DAVID H. ROBERTSON · 2026 · Case ID: A26040284

MIXED

Summary

The veteran, who served from May 1991 to May 1995, appeals the denial of service connection for bilateral hearing loss, tinnitus, lumbar spine disability, right hand disability, left hip disability, and traumatic brain injury (TBI). The Board denied service connection for hearing loss, stating the veteran's audiometric testing and testimony did not meet the VA's definition of hearing loss disability, as the pure tone thresholds and speech recognition scores were within normal limits. For tinnitus, the Board found the VA examiner's opinion, which concluded the tinnitus was less likely than not service-related, to be the most probative evidence, noting the veteran's lay testimony regarding etiology was not competent. The claims for lumbar spine and right hand disabilities were denied, with the Board relying on the VA examiner's opinion that these conditions were less likely than not service-related, citing a lack of continuity of symptomatology and minor, self-limiting in-service conditions. The claims for left hip disability and TBI were denied due to the absence of a current diagnosis or evidence of functional impairment of earning capacity, and in the case of TBI, the veteran admitted to a negative MRI. The Board noted that private nexus opinions submitted after the hearing could not be considered. Service connection for bilateral hearing loss, tinnitus, lumbar spine disability, right hand disability, left hip disability, and TBI were denied. The Board remanded claims for left knee disability, headaches, and cervical spine disability for further development, finding the VA examinations inadequate.

Rationale

No current diagnosis of bilateral hearing loss for VA purposes.; Veteran's lay testimony regarding etiology not competent.; Audiometric testing showed normal hearing bilaterally.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210301-145185

Full Decision Text

Citation Nr: A26040284
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 210301-145185
DATE: April 29, 2026

ORDER

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for tinnitus is denied.

Entitlement to service connection for a lumbar spine disability is denied.

Entitlement to service connection for a right hand disability is denied.

Entitlement to service connection for a left hip disability is denied.

Entitlement to service connection for a traumatic brain injury (TBI) is denied.

REMANDED

Entitlement to service connection for a left knee disability is remanded.

Entitlement to service connection for headaches is remanded.

Entitlement to service connection for a cervical spine disability is remanded.

FINDINGS OF FACT

1. At no time during the pendency of the claim does the Veteran have bilateral ear hearing loss for VA purposes, and the record does not contain a recent diagnosis of such disability prior to the Veteran's filing of a claim.

2. The Veteran's tinnitus is not etiologically related to his active service.

3. The evidence of record persuasively weighs against finding that a lumbar spine disability began during active service or is otherwise related to an in-service injury or disease.

4. The evidence of record persuasively weighs against finding that a right hand disability began during active service or is otherwise related to an in-service injury or disease.

5. The Veteran does not have a current diagnosis of a left hip disability; there is no evidence of pain productive of functional impairment of earning capacity.

6. The Veteran does not have a current diagnosis of a TBI; there is no evidence of pain productive of functional impairment of earning capacity.

CONCLUSIONS OF LAW

1. The criteria for service connection for hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385.

2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1154; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304.

3. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1101, 1110, 1154; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304.

4. The criteria for service connection for a right hand disability have not been met. 38 U.S.C. §§ 1101, 1110, 1154; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304.

5. The criteria for service connection for a left hip disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

6. The criteria for service connection for a TBI have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from May 1991 to May 1995.

The rating decision on appeal was issued in March 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In the March 1, 2021, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on March 27, 2025.

Therefore, the Board may only consider the evidence of record at the time of the March 2020 agency of original jurisdiction (AOJ) decision on appeal, 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
on March 27, 2025.

At the outset, the Board notes that the Veteran submitted private nexus opinions regarding his lumbar spine disability, right hand disability, left hip disability, and left knee disability on June 27, 2025, 92 days after the March 2025 Board hearing. Such evidence must have been submitted within 90 days following the hearing; evidence submitted more than 90 days following the hearing is ineligible for consideration. See 38 C.F.R. §§ 20.300, 20.302(a), 20.801. As such, the Board is unable to consider these private nexus opinions in the instant decision.

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 claims, 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 the claims of a left knee disability, entitlement to service connection for headaches, and entitlement to service connection for a cervical spine disability, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

Service Connection

Generally, 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).

In rendering this decision, the Board has reviewed all evidence of record whether discussed in detail. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (holding the Board must only discuss the evidence which is relevant to the issues on appeal). To the extent the evidence is found in "approximate balance," the Board will afford the benefit of the doubt in favor of the Veteran. Lynch v. McDonough, 21 F. 4th 776 (Fed, Cir. 2021) (holding that exact equipoise is not required for the benefit of the doubt to be applied, but rather the Veteran is entitled to the benefit of the doubt when the evidence is in approximate balance or "nearly equal").

Entitlement to service connection for bilateral hearing loss

The Veteran submitted his Fully Developed Claim, VA Form 21-526EZ, in October 2019 and asserted that he has bilateral hearing loss due to exposure to weapons fire.

Specific to claims for service connection for hearing loss, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels or greater; the threshold for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. When there is no diagnosis of hearing loss in service, the absence of documented hearing loss in service is not fatal to a service connection claim for such disability, especially if service records indicate a significant in-service threshold shift. Ledford v. Derwinski, 3 Vet. App. 87 (1992); Hensley v. Brown, 5 Vet. App. 155 (
0, 2000, 3000 or 4000 Hertz is 40 decibels or greater; the threshold for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. When there is no diagnosis of hearing loss in service, the absence of documented hearing loss in service is not fatal to a service connection claim for such disability, especially if service records indicate a significant in-service threshold shift. Ledford v. Derwinski, 3 Vet. App. 87 (1992); Hensley v. Brown, 5 Vet. App. 155 (1993). Establishing service connection is possible if the current hearing loss can be adequately linked to service. Ledford, 3 Vet. App.at 89.

Additionally, other organic diseases of the nervous system, which may include sensorineural hearing loss, are classified as "chronic diseases" 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 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015) (including tinnitus as an organic disease of the nervous system). 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 veteran's separation from service. Walker, 708 F.3d at 1338.

The Veteran's DD-214 reflects that he served as military police during service.

The Veteran received a VA examination in December 2019. Pure tone thresholds, in decibels, were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 5 5 10 10 10

LEFT 5 5 5 5 5

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear. Based on these results, the examiner found normal hearing bilaterally.

At the March 2025 Board hearing, the Veteran testified "I just know that I have it" with regard to hearing loss. He had trouble hearing people speak and hearing the television but denied using anything like headphones. The Veteran further testified that he had trouble hearing in public settings and related his hearing loss to ordinances going off, weapons fire, heavy equipment, or jets; "I don't remember having hearing loss before I went into the military."

The record does not include evidence of a pure tone threshold of 40 decibels or greater at 500, 1000, 2000, 3000, or 4000 Hertz; pure tone thresholds of 26 decibels or greater at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz; or any speech recognition scores using the Maryland CNC Test less than 94 percent. 38 C.F.R. § 3.385. Initially, the Board acknowledges the Veteran's testimony that he has hearing loss due to service. He is competent to describe impaired hearing, which is within the realm of his personal experience. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Nonetheless, determining whether a hearing loss disability exists, as defined by 38 C.F.R. § 3.385, is not a simple medical determination because the diagnosis is based on results of audiology testing. A hearing loss disability under 38 C.F.R. § 3.385 is also not a condition under case law that has been found to be capable of lay observation. For these reasons, the Veteran, as a layperson, is not competent to state that his level of impaired hearing reaches the level of the legal standards of a hearing loss disability for the purpose of VA disability compensation under 38 C.F.R. § 3.385.

Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the record does not reflect current bilateral hearing loss for VA purposes, the cornerstone element of service connection has not been met, and service connection is not warranted. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). No further discussion of the remaining elements is necessary. The Board acknowledges the Court's holding in Saunders v. Wilkie, 886 F.3d. 1356 (2018), but does not find a basis for determining that there is functional impairment related to a diagnosis of bilateral hearing loss. Moreover, the Veteran did not allege manifestations of similar severity, frequency and duration as those VA has determined by regulation would cause impaired earning capacity in an average person. Wait v. Wilkie, 33 Vet. App. 8 (2020).

In summary, the evidence fails to establish that the Veteran has bilateral hearing loss disability as defined in 38 C.F.R. § 3.385 for VA compensation purposes. In the absence of the claimed disability, service connection may not be granted. See Brammer, 3 Vet. App. 223 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection cannot be granted if the claimed disability does not exist).

Accordingly, the Board finds that service connection for bilateral hearing loss is not warranted. The appeal is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F. 4th 776 (Fed, Cir. 2021).

Entitlement to service connection for tinnitus

The Veteran submitted his Fully Developed Claim, VA Form 21-526EZ, in October 2019 and asserted that he has tinnitus due to exposure to weapons fire.

The Veteran received a VA examination in December 2019 and reported recurrent tinnitus. Specifically, he had subjective bilateral intermittent tinnitus since service but did not report a specific date or circumstance of onset. Based on the results of the examination, the examiner found that the Veteran's tinnitus was less likely than not caused by military noise exposure. There was no significant in-service threshold shift and, in the absence of an objectively verifiable noise injury, the association between tinnitus and noise exposure could not be assumed to exist.

At the March 2025 Board hearing, the Veteran testified that his tinnitus was related significant noise exposure during service from jets and ordinance detonations from the Explosive Ordinance Disposal (EOD) team next to his camp.

The Board finds the December 2019 VA medical opinion to be the most probative evidence of record. The examiner's findings are credible and competent, as they were provided with thorough rationales with regards to the Veteran's tinnitus and its lack of connection to service. The Board notes that there is nothing in the record to link the Veteran's tinnitus to his time in service and that his statements alone, while probative, are not competent to provide such a link.

While laypersons are competent to report the presence of observable symptoms, the Veteran is not competent to provide an opinion regarding the etiology of his claimed disability. A medical opinion of that nature requires medical testing and expertise that is outside the common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide an opinion with regard to his tinnitus, and his belief in and assertion of a nexus bears no probative weight.

As a result, the examiner was able to conclude that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for
that is outside the common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide an opinion with regard to his tinnitus, and his belief in and assertion of a nexus bears no probative weight.

As a result, the examiner was able to conclude that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim and entitlement to service connection for tinnitus must be denied. Lynch, 21 F.4th 776 (Fed. Cir. 2021).

Entitlement to service connection for a lumbar spine disability

The Veteran submitted his Fully Developed Claim, VA Form 21-526EZ, in October 2019 and asserted that his lumbar spine condition was due to an auto accident during service.

Service treatment records reflect that the Veteran was involved in a motorcycle accident in September 1992 and complained of lower back pain. He was subsequently diagnosed with a rhomboid strain. He also complained of right upper back pain in December 1993 but denied any recent injury to the back or shoulders. He reported a history of right upper back pain that started a year earlier and was then diagnosed with a moderate back strain.

On his April 1995 separation examination, the Veteran's spine was noted as normal and he was qualified for discharge. On his contemporaneous Report of Medical History, the Veteran checked "no" for "recurrent back pain.

The Veteran received a VA examination in November 2019 and the examiner noted a diagnosis of a lumbar strain from 2019. He also noted a service treatment record from September 1992 that showed the Veteran was seen for low back pain after a motor vehicle accident a month prior. Based on the results of the examination, the examiner concluded that the Veteran's lumbar spine disability was less likely than not incurred in or caused by service. Service treatment records did not show that a back condition was persistent during service. Rather, the Veteran experienced a minor, self-limiting condition that resolved as expected. It would not be likely that complications from service would be expected to resurface later in life. The considerable period of time following service without a continuity of the same complaints would have severed any causal connection to the current lumbar spine disability.

At the March 2025 Board hearing, the Veteran testified that he injured his back in Somalia when he fell out of a vehicle. Since then, he has had significant upper back and neck pain but did not seek treatment through VA until approximately 2021.

The Board acknowledges the statements of the Veteran as to the existence and etiology of a lumbar spine disability and acknowledges that the Veteran is competent to give evidence about what he experienced. The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). However, while the Veteran is competent to report his current symptoms, as a lay person he does not have the education, training, experience to diagnose or opine as to the etiology of the conditions. See Jandreau, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

The Board finds the November 2019 VA examination to be the most probative evidence of record and concludes that service connection for a lumbar spine disability is not warranted. The VA examiner's findings are credible and competent, as they were provided with thorough rationales with regards to the Veteran's lumbar spine disability and its lack of connection to service. While there is evidence of in-service complaints of back pain, as well as in-service diagnoses of back strain, the totality of the evidence reflects that these conditions resolved by separation. The separation examination was silent for any such diagnoses, and the Veteran's contemporaneous lay statements reflect that he no longer suffered from any symptoms related to his back. The Board notes that there is nothing in the record
finds the November 2019 VA examination to be the most probative evidence of record and concludes that service connection for a lumbar spine disability is not warranted. The VA examiner's findings are credible and competent, as they were provided with thorough rationales with regards to the Veteran's lumbar spine disability and its lack of connection to service. While there is evidence of in-service complaints of back pain, as well as in-service diagnoses of back strain, the totality of the evidence reflects that these conditions resolved by separation. The separation examination was silent for any such diagnoses, and the Veteran's contemporaneous lay statements reflect that he no longer suffered from any symptoms related to his back. The Board notes that there is nothing in the record to link the Veteran's lumbar spine disability to his time in service and that his statements alone, while probative, are not competent to link a currently diagnosed lumbar spine disability to service. The November 2019 VA examiner was able to conclude that the Veteran's claimed condition was less likely than not incurred in or caused by service following a thorough examination and review of medical literature.

The benefit of the doubt doctrine, see 38 U.S.C. §5107(b), is therefore not for application as to this claim and entitlement to service connection for a lumbar spine disability must be denied. Lynch, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

Entitlement to service connection for a right hand disability

The Veteran submitted his Fully Developed Claim, VA Form 21-526EZ, in October 2019 and asserted that his right hand condition was due to an injury while deployed as well as an auto accident during service.

Service treatment records reflect that the Veteran was treated for a right hand contusion in February 1995 after a 10-pound starter fell on it.

The Veteran received a VA examination in February 2019 and the examiner noted a diagnosis of a right hand strain from 2019. A February 1995 emergency room note highlighted that the Veteran dropped a car starter that weighed 8 to 10 pounds onto his right hand. A physical examination revealed some tenderness, but x-rays were negative for a fracture. He was seen two days later and the assessment quoted was that of a right hand contusion with conservative measures to be continued. There were, however, no further notes for the right hand after February 1995. Based on the results of the examination, the examiner concluded that the Veteran's right hand disability was less likely than not incurred in or caused by service. Service treatment records did not show that a right hand condition was persistent during service. Rather, the Veteran experienced a minor, self-limiting condition that resolved as expected. It would not be likely that complications from service would be expected to resurface later in life. The considerable period of time following service without a continuity of the same complaints would have severed any causal connection to the current lumbar spine disability.

At the March 2025 Board hearing, the Veteran testified that he was in a vehicle accident during service. However, he injured his right hand multiple times.

The Board acknowledges the statements of the Veteran as to the existence and etiology of a right hand disability and acknowledges that the Veteran is competent to give evidence about what he experienced. However, while the Veteran is competent to report his current symptoms, as a lay person he does not have the education, training, experience to diagnose or opine as to the etiology of the conditions. See Jandreau, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

The Board finds the November 2019 VA examination to be the most probative evidence of record and concludes that service connection for a right hand disability is not warranted. The VA examiner's findings are credible and competent, as they were provided with thorough rationales with regards to the Veteran's right hand disability and its lack of connection to service. The Board notes that there is nothing in the record to link the Veteran's right hand disability to his time in service and that his statements alone, while probative, are not competent to link a currently diagnosed lumbar spine disability to service. The November 2019 VA examiner was able to conclude that the Veteran's claimed condition was less likely than not incurred in or caused by service following a thorough examination and review of medical literature.

The benefit of the doubt doctrine, see 38 U.S.C. §5107(b), is therefore not for application as to this claim and entitlement to service connection for a right hand disability must be denied. Lynch, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

Entitlement to service connection for a left hip disability

The Veteran submitted his Fully Developed Claim,
and that his statements alone, while probative, are not competent to link a currently diagnosed lumbar spine disability to service. The November 2019 VA examiner was able to conclude that the Veteran's claimed condition was less likely than not incurred in or caused by service following a thorough examination and review of medical literature.

Entitlement to service connection for a left hip disability

The Veteran submitted his Fully Developed Claim, VA Form 21-526EZ, in October 2019 and asserted that his left hip condition was due to an auto accident during service.

Following service, there is no evidence of a current diagnosis of a disability associated with the left hip. Post-service treatment records are negative for complaints, diagnoses, or treatment for this condition. For example, the Veteran was informed in February 2019 that x-ray results of the hip did not show any abnormalities. Finally, the AOJ made no favorable findings in the March 2020 rating decision on appeal.

As the record does not reflect a current diagnosis related to a left hip disability, the cornerstone element of service connection has not been met, and service connection is not warranted. See Boyer, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer, 3 Vet. App. 223, 225 (1992). No further discussion of the remaining elements is necessary.

The Board has considered whether the Veteran's symptoms, although not attributable to a diagnosis, are otherwise a "disability" for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In Saunders, the Federal Circuit held that the term "disability" refers to "functional impairment of earning capacity" and not "the underlying cause of said disability." Therefore, "pain alone can constitute a disability for compensation purposes" if such pain causes such functional impairment of earning capacity. Id. In this case, the Veteran testified at the March 2025 Board hearing that he had left hip pain. Some days the pain was "okay" but some days he had to move his hip because it would get caught "like a hitch." However, there is no lay or medical evidence to suggest that any subjective complaints of pain caused functional impairment of earning capacity. As outlined above, the medical evidence as a whole does not support a distinct diagnosis or "disability" for VA purposes. See Saunders, 886 F.3d 1356.

The Board notes that the Veteran has not been given a VA examination addressing his claimed left hip disability. However, the Board finds that such examinations are not required. In this regard, in determining whether the duty to assist requires that a VA medical examination be provided, or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are:

1. whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability;

2. whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period;

3. whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and

4. whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).

With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The post-service treatment records are negative for complaints, treatments or diagnoses related to a left hip disability. The totality of the evidence reflects that there are no current diagnoses related to the left hip and no current functional impairments of earning capacity related to any pain experienced in the left hip. Therefore, the Board finds that a VA examination and/or medical opinion is not necessary to decide this claim.

In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. See Boyer, 210 F.3d 1351 (Fed. Cir. 2000); Brammer, 3 Vet. App. 223 (1992). Therefore, as the evidence of record fails to show that the Veteran has a left hip disability, the Board concludes that service connection is not warranted, and no further discussion of the remaining elements is necessary. See Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006) (finding that the absence of any one element will result in denial of service connection).

Entitlement to service connection for a TBI

The Veteran submitted his Fully Developed Claim, VA Form 21-526EZ, in October 2019 and asserted that his a TBI due to an auto accident during service.

Following service, there is no evidence of a current diagnosis of a disability associated with a TBI. Post-service treatment records are negative for complaints, diagnoses, or treatment for this condition. Furthermore, at the March 2025 Board hearing, the Veteran admitted that he received an MRI through VA and was told he did not have a TBI. Finally, the AOJ made no favorable findings in the March 2020 rating decision on appeal.

As the record does not reflect a current diagnosis related to a TBI, the cornerstone element of service connection has not been met, and service connection is not warranted. See Boyer, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer, 3 Vet. App. 223, 225 (1992). No further discussion of the remaining elements is necessary.

The Board has considered whether the Veteran's symptoms, although not attributable to a diagnosis, are otherwise a "disability" for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In Saunders, the Federal Circuit held that the term "disability" refers to "functional impairment of earning capacity" and not "the underlying cause of said disability." Therefore, "pain alone can constitute a disability for compensation purposes" if such pain causes such functional impairment of earning capacity. Id. However, there is no lay or medical evidence to suggest that any subjective complaints of pain caused functional impairment of earning capacity. As outlined above, the medical evidence as a whole does not support a distinct diagnosis or "disability" for VA purposes. See Saunders, 886 F.3d 1356.

The Board notes that the Veteran has not been afforded a VA examination addressing his claimed TBI. However, the Board finds that such examinations are not required. The post-service treatment records are negative for complaints, treatments or diagnoses related to a TBI. The totality of the evidence reflects that there are no current diagnoses related to a TBI and no current functional impairments of earning capacity related to any pain experienced. Therefore, the Board finds that VA examinations and/or opinions are not necessary to decide this claim. See McLendon, 20 Vet. App. 79 (2006).

In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. See Boyer, 210 F.3d 1351 (Fed. Cir. 2000); Brammer, 3 Vet. App. 223 (1992). Therefore, as the evidence of record fails to show that the Veteran has a TBI, the Board concludes that service connection is not warranted, and no further discussion of the remaining elements is necessary. See Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006) (finding that the absence of any one element will result in denial of service connection).

REASONS FOR REMAND

Entitlement to service connection for a left knee disability

X-rays obtained during VA treatment in February 2019 revealed mild degenerative changes in the left and right knees, along with possible chondromalacia patella in the left knee.

However, despite finding
Vet. App. 223 (1992). Therefore, as the evidence of record fails to show that the Veteran has a TBI, the Board concludes that service connection is not warranted, and no further discussion of the remaining elements is necessary. See Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006) (finding that the absence of any one element will result in denial of service connection).

REASONS FOR REMAND

Entitlement to service connection for a left knee disability

X-rays obtained during VA treatment in February 2019 revealed mild degenerative changes in the left and right knees, along with possible chondromalacia patella in the left knee.

However, despite finding abnormal or outside of normal range of motion results for the left knee, the November 2019 VA examination did note a diagnosis. Rather, the examiner only noted right knee joint osteoarthritis based on the results of the February 2019 x-ray. A nexus opinion was not obtained for any diagnosed disability of left knee

Notably, the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

In light of the diagnosis of mild degenerative changes in the left knee, the Board finds the November 2019 VA examination inadequate. Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision.").

Failure to obtain an adequate VA examination and medical opinion was a pre-decisional duty to assist error, and a remand is therefore warranted.

Entitlement to service connection for headaches

A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another disability for which service connection has been awarded, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon , 20 Vet. App. 79, 8186 (2006). See also 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159(c)(4)(i).

The McLendon elements are satisfied with regard to the claim of service connection for headaches. Regarding the first element, VA treatment records reflect that the Veteran was diagnosed with tension headaches. See May 2019 Neurology Consultation.

Regarding the second element, the Veteran asserted that his headaches are due to an auto accident during active duty. See October 2019 VA Form 21-526EZ.

Regarding the third and fourth elements, there is an indication that the Veteran's headaches could be related to his active-duty service, but there is insufficient evidence of record by which the Board can make a decision. The four Mclendon elements are satisfied.

It was a pre-decisional duty to assist error for the AOJ to not obtain a VA medical opinion where the McLendon elements are met with regards to headaches. A remand is therefore required.

Entitlement to service connection for a cervical spine disability

The McLendon elements are satisfied with regard to the claim of service connection for a cervical spine disability. Regarding the first element, VA treatment records reflect that the Veteran was diagnosed with cervical spondylosis. See May 2019 Community Care Note.

Regarding the second element, the Veteran asserted that his cervical spine condition is due to an auto accident during active duty. See October 2019 VA Form 21-526EZ.

Regarding the third and fourth elements, there is an indication that the Veteran's cervical spine disability could be related to his active-duty service, but there is insufficient evidence of record by which the Board can make a decision. The four McLendon elements are satisfied.

It was a pre-decisional duty to assist error for the AOJ to
the claim of service connection for a cervical spine disability. Regarding the first element, VA treatment records reflect that the Veteran was diagnosed with cervical spondylosis. See May 2019 Community Care Note.

Regarding the second element, the Veteran asserted that his cervical spine condition is due to an auto accident during active duty. See October 2019 VA Form 21-526EZ.

It was a pre-decisional duty to assist error for the AOJ to not obtain a VA medical opinion where the McLendon elements are met with regards to a cervical spine disability. A remand is therefore required.

The matters are REMANDED for the following action:

1. Provide the Veteran with an addendum opinion to determine the nature and etiology of any diagnosed left knee disability.

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 Veteran's left knee disability had its onset during the Veteran's active service or is otherwise due to his service.

The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record.

2. Provide the Veteran with an opinion to determine the nature and etiology of any diagnosed headaches and cervical spine disability. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. If necessary in order to render this opinion, the examiner may schedule the Veteran for an examination.

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 Veteran's headaches and cervical spine disability had their onset during the Veteran's active service or are otherwise due to his service.

David Robertson

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A. Daniels, 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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