Case A26040357

Summary

The veteran, who served from July 1986 to November 1989 as a cannon crew member and assistant gunner, appeals the denial of service connection for bilateral hearing loss and the grant of service connection for tinnitus. The Board dismissed the appeal for bilateral hearing loss as the veteran withdrew it at the May 2025 hearing, finding the withdrawal explicit and unambiguous. Regarding tinnitus, the veteran claimed in-service onset due to noise exposure from artillery and cannons without hearing protection. While service treatment records were negative for tinnitus complaints, they did show mild left ear hearing loss in 1988 and 1989. The veteran reported in-service noise exposure and tinnitus onset in service at the Board hearing, disputing the VA examiner's report that placed the onset in 2010, over 20 years after service. The VA examiner opined the tinnitus was less likely than not service-related due to the late reported onset and lack of in-service complaints. However, the Board found the veteran's testimony credible regarding in-service onset and noise exposure, supported by the documented hearing loss. Resolving doubt in the veteran's favor, the Board found the tinnitus had its onset during service due to noise exposure, granting service connection.

Full Decision Text

Citation Nr: A26040357
Decision Date: 04/29/26	Archive Date: 04/29/26

DOCKET NO. 211005-189706
DATE: April 29, 2026

ORDER

The appeal pertaining to the claim of entitlement to service connection for bilateral hearing loss is dismissed.

Service connection for tinnitus is granted.

FINDINGS OF FACT

1. Prior to the promulgation of a decision, the Veteran withdrew his appeal pertaining to the issue of entitlement to service connection for bilateral hearing loss on the record at the May 2025 Board of Veterans' Appeals (Board) hearing.

2. Resolving all reasonable doubt in favor of the Veteran, his currently diagnosed tinnitus had its onset during his military service as a result of noise exposure.

CONCLUSION OF LAW

1. The criteria for withdrawal of appeal pertaining to the issue of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1986 to November 1989. 

This matter comes before the Board on appeal from a rating decision issued in August 2021 by a Department of Veterans Affairs (VA) Regional Office under the modernized appeals system known as the Appeals Modernization Act (AMA). In October 2021, the Veteran timely appealed such rating decision by submitting a Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182) and requested a Board hearing, which was held before the undersigned Veterans Law Judge in May 2025.  A transcript of the hearing is associated with the record.

Therefore, the Board may only consider the evidence of record at the time of the August 2021 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), 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, he 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. 

1. Entitlement to service connection for bilateral hearing loss.

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.205.  Withdrawal may be made by the appellant or by his or her authorized representative.  Id.

In the instant case, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal pertaining to the issue of entitlement to bilateral hearing loss on the record at the May 2025 Board hearing.  In this regard, the Board finds that such withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018).  Consequently, there remain no allegations of errors of fact or law for appellate consideration with regard to such issue. Accordingly, the Board does not have jurisdiction to review the appeal of such issue, and it is dismissed.

2. Entitlement to service connection for tinnitus.

The Veteran contends that his current tinnitus had its onset during his military service as a result of noise exposure from artillery without hearing protection coincident with a military occupational specialty (MOS) as a cannon crew member and assistant gunner. 
io v. Shinseki, 25 Vet. App. 45, 57 (2011); Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018).  Consequently, there remain no allegations of errors of fact or law for appellate consideration with regard to such issue. Accordingly, the Board does not have jurisdiction to review the appeal of such issue, and it is dismissed.

2. Entitlement to service connection for tinnitus.

The Veteran contends that his current tinnitus had its onset during his military service as a result of noise exposure from artillery without hearing protection coincident with a military occupational specialty (MOS) as a cannon crew member and assistant gunner.  In this regard, in the August 2021 rating decision, the AOJ favorably found that he has a current diagnosis of tinnitus as demonstrated at a July 2021 VA examination and he was exposed to noise in service coincident with the foregoing MOS. Under the AMA, the Board is bound by such favorable findings. 38 C.F.R. § 3.104 (c). Thus, the remaining inquiry is whether the Veteran's tinnitus had its onset in, or is otherwise related to, his military service, to include his noise exposure therein. 

In this regard, while the Veteran's service treatment records (STRs) are negative for any complaints, treatment, or diagnosis referable to tinnitus, such reflect that, in August 1988, it was noted that he had mild high frequency hearing loss in his left ear with audiograms conducted at such time and in October 1989 reflecting hearing acuity of 30 decibels at 6000 Hertz.  

Additionally, a July 2021 VA treatment record reflects the Veteran's report of in-service noise exposure to rifles, handguns, machine guns, artillery, and aircraft engines, and denial post-service noise exposure, and a diagnosis of tinnitus. Similarly, at a July 2021 VA examination, the Veteran again reported in-service noise exposure to 105mm cannons, M-60, 50 caliber, grenades, anti-tank launchers, and airplanes as well as post-service noise exposure coincident with his job as a class B truck driver for 30 years. 

At such time, the examiner noted that the Veteran reported the onset of tinnitus in 2010, and opined that such disorder is less likely than not caused by or a result of military noise exposure. In support thereof, she stated that the Veteran reported the onset of tinnitus in 2010, which was over 20 years after his separation from service and, while his MOS of cannon crew member had a high probability of hazardous noise exposure, there was no report of tinnitus in his STRs, at separation, or post-service treatment records until he filed the instant claim, and the current literature did not support late onset noise-induced tinnitus. 

Conversely, at his May 2025 Board hearing, the Veteran testified that his tinnitus had its onset in service, at which time it was accompanied by dizziness, coincident with working on the firing range and in the field without hearing protection. He indicated that, while he did not seek treatment as he learned to deal with it, his tinnitus continued to the present time. With respect to the July 2021 VA examiner's notation that the Veteran reported the onset of his tinnitus in 2010, he disputed such report. In this regard, he indicated that he did not affirmatively report such date as he had difficulty recalling the specific date of onset, and, as a result of the examiner's pressure, he shut down, so the examiner went with 2010. 

In this regard, when a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the veteran's testimony and determine whether it supports a finding of service incurrence and continued symptoms since service. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007); Charles v. Principi, 16 Vet. App. 370 (2002). In the instant case, the Veteran has competently reported the onset of his tinnitus in service coincident with his acknowledged noise exposure, and the Board has no reason to doubt his credibility in such regard. Such report is further supported by his documented in-service notation of left ear hearing loss in August 1988. Therefore, the Board resolves all reasonable doubt in favor of the Veteran and finds that his currently diagnosed tinnitus had its onset during his military service as a result of noise exposure. Consequently, service connection  for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

 

 

A. JAEGER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board
 Veteran has competently reported the onset of his tinnitus in service coincident with his acknowledged noise exposure, and the Board has no reason to doubt his credibility in such regard. Such report is further supported by his documented in-service notation of left ear hearing loss in August 1988. Therefore, the Board resolves all reasonable doubt in favor of the Veteran and finds that his currently diagnosed tinnitus had its onset during his military service as a result of noise exposure. Consequently, service connection  for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

 

 

A. JAEGER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Leung, Dawn

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.