TINNITUS

Summary

The veteran served in the U.S. Navy from June 1974 to February 1977, including service aboard the USS Coral Sea (CVA-43) in offshore eligible waters of Vietnam, qualifying him as a Blue Water Navy veteran. He appeals the denial of service connection for tinnitus and the remand of claims for lumbar degenerative arthritis with DDD, right hand degenerative arthritis, right ankle strain, and pseudofolliculitis barbae (PFB). The Board denied service connection for tinnitus, finding that the evidence persuasively weighed against it. The veteran's service entrance and separation examinations, as well as post-service VA treatment records, were negative for tinnitus or related symptoms. Although the veteran described significant noise exposure during service, he repeatedly denied experiencing tinnitus or any functional impact from it. The Board found this denial to be highly probative, concluding that the current disability requirement for service connection was not met. The Board remanded the other claims due to a duty to assist error, specifically the failure to obtain SSA records and correctional facility medical records, and the lack of a comprehensive VA examination for the right ankle strain. The Board noted that while these other claims were remanded, the tinnitus claim could be decided based on the existing record.

Rationale

Service records negative for tinnitus complaints; Veteran repeatedly denied tinnitus during examinations; Evidence persuasively weighs against service connection

Full Decision Text

Citation Nr: A26040507
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 250415-540449
DATE: April 30, 2026

ORDER

Entitlement to service connection for tinnitus is denied.

REMANDED

Entitlement to service connection for lumbar degenerative arthritis with degenerative disc disease (DDD) is remanded.

Entitlement to service connection for degenerative arthritis of right hand is remanded.

Entitlement to service connection for right ankle strain is remanded.

Entitlement to service connection for pseudofolliculitis barbae (PFB) is remanded.

FINDING OF FACT

The persuasive evidence of record is against a finding that the claimed tinnitus is the result of the Veteran's active service.

CONCLUSION OF LAW

The criteria for service connection for tinnitus have not been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Navy from June 1974 to February 1977.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2024 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which was later reviewed and continued in a March 2025 Higher-Level Review (HLR) decision.

In an April 2025 VA Form 10182, Notice of Disagreement (NOD), the Veteran elected the evidence submission docket.  Therefore, the Board may only consider the evidence of record before the Agency of Original Jurisdiction (AOJ) at the time of its decision on the issues on appeal subject to HLR, as well as any evidence submitted by the Veteran or his representative with the NOD or within 90 days following receipt of the NOD.  38 C.F.R. §§ 20.300(a), 303.  If additional evidence was submitted between the dates of the AOJ decision and VA's receipt of the NOD, the Board will not consider it unless it is resubmitted during the 90 days following VA's receipt of the NOD.  If evidence is not resubmitted, the Veteran is welcome to file a supplemental claim to have this evidence considered.  Id.; Cook v. McDonough, 36 Vet. App. 175 (2023).  However, because the Board is remanding the several issues, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those appeals. 38 C.F.R. § 3.103(c)(2)(ii).

The Board has limited the discussion below to the relevant evidence required to support its finding of facts and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

Service Connection

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 U.S.C. § § 1110; 38 C.F.R. § 3.303(a).

Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology.  38 C.F.R. § 3.303.  The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a), which includes organic diseases of the nervous system, such as tinnitus.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015).

Additionally, VA regulations provide that certain diseases associated with exposure
) when a chronic disease is not present during service, evidence of continuity of symptomatology.  38 C.F.R. § 3.303.  The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a), which includes organic diseases of the nervous system, such as tinnitus.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015).

Additionally, VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met.  38 C.F.R. § 3.309.  A veteran who, during active military, naval, or air service, served in the Republic of Vietnam (Vietnam) during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.  38 C.F.R. § 3.307(a)(6).  Once exposure has been established by the evidence, the presumptions found at 38 C.F.R. § 3.309(e) are applicable.

The Blue Water Navy Vietnam Veterans Act of 2019, codified at 38 U.S.C. § 1116A, provides, in part, that the presumption of exposure to herbicide agents is available to veterans who served offshore of Vietnam if the location was not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting certain specified points of latitude and longitude.  38 U.S.C. § 116A; see also Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019).

Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection for a disability due to herbicide agent exposures with proof of direct causation.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom, Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998).

On August 10, 2022, a statute known as "the PACT Act" was signed into law expanding the scope of presumed in-service toxic exposures.  See Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act), Pub. L. 117-168 (August 10, 2022).  The PACT Act established standards for veterans exposed to toxic exposure risk activities (TERA).  

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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); Jandreau v. Nicholson, 492 F.3d at 1376-77.  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1376-77. 

In rendering this decision, the Board has reviewed all evidence of record whether discussed in
.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d at 1376-77.  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1376-77. 

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).  

A veteran is entitled to the benefit of the doubt when the evidence is in approximate balance or "nearly equal," and does not require that the evidence be in exact equipoise.  Evidence is in approximate balance when the evidence in favor of and opposing the veteran's claim is found to be almost exactly or nearly equal.  Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021).

Turning to the relevant evidence of record, the Veteran's June 1974 service entrance examination noted normal ears and eardrums.  An audiogram had normal results.  On an accompanying report of medical history, the Veteran denied ear trouble or hearing loss.  

Service treatment records (STRs) were silent for complaints, symptoms, treatment, or diagnosis of tinnitus or any hearing complaints.  

A separation examination conducted in February 1977 reflected normal ears and eardrums.  An audiogram demonstrated hearing within normal limits.  On an accompanying report of medical history, the Veteran denied ear trouble and hearing loss.  

Service personnel records reflected that the Veteran's military occupational specialty (MOS) was communication and intelligence specialist.  He had sea service aboard the USS Coral Sea (CVA-43) which has been confirmed to have been located in the offshore eligible waters of Vietnam, establishing that he was a Blue Water Navy veteran.  

Post-service, VA treatment records were negative for tinnitus in October 2016, June 2017, November 2023, May 2024, and November 2024.  

The Veteran underwent a VA examination in December 2024.  He described military noise exposure of gunfire, aircraft and flight line noise, ship noise, and that his berth was under the catapult.  No hearing protection was available.  He denied other noise exposure.  The Veteran denied tinnitus.  No functional impact from tinnitus was reported.

Entitlement to service connection for tinnitus is denied.

Based on the foregoing, the Board finds that the persuasive evidence of record is against service connection for tinnitus.  The Veteran's MOS had a low probability for noise exposure.  However, he described significant ship and flight line noise.  Nonetheless, even assuming that he had exposure to military noise, the Board finds that service connection is not warranted.  

For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone.  See Charles v. Principi, 16 Vet. App. 370 (2002).  If a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination.  In addition, since the diagnosis of tinnitus is so heavily reliant upon lay statements, the etiology of the disorder is similarly reliant upon them.  The date that a veteran reports that the tinnitus symptoms began is generally accepted as the date that the disorder began, without further examination.  Thus, while service connection for tinnitus requires a medical diagnosis of tinnitus and a medical nexus relating the diagnosis to military service, lay testimony plays an unusually important role in these determinations.

The current disability requirement for service connection is satisfied if a "claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim."  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

Throughout the pertinent appeal period, the Veteran has endorsed multiple unrelated medical complaints.  At no point has he endorsed tinnitus, either to treating clinicians or at the VA examination.  Nor has he described ringing, buzzing, or similar symptomology in his ears.  

The Board attaches significant probative value to the Veteran's explicit and repeated denials of tinnitus while at the same time endorsing other health complaints.  Cf. Buczynski v. Shinseki, 24 Vet. App.
 a "claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim."  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

Throughout the pertinent appeal period, the Veteran has endorsed multiple unrelated medical complaints.  At no point has he endorsed tinnitus, either to treating clinicians or at the VA examination.  Nor has he described ringing, buzzing, or similar symptomology in his ears.  

The Board attaches significant probative value to the Veteran's explicit and repeated denials of tinnitus while at the same time endorsing other health complaints.  Cf. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (explaining that where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the conditions or symptoms did not exist).  Further, the Veteran denied any functional impact from tinnitus.  See Saunders v. Wilkie, 886 F.3d 1356 (2018) (holding that pain alone can constitute a disability for compensation purposes); but see Wait v. Wilkie, 33 Vet. App. 8 (2020) (holding that subjective pain is not enough to establish the presence of a disability; such pain must reach the level of a functional impairment of earning capacity).

The Board acknowledges that other service connection claims within this appeal are being remanded below.  The Board finds below that the failure to obtain missing medical records constitutes a pre-decisional duty to assist error with regard to those issues, requiring remand.  See 38 C.F.R. § 20.802.  In contrast, because the Board has found that no tinnitus disability has been present during the entirety of the appeal period and the medical records required below pre-date the appeal period, such records are not pertinent to the inquiry of whether a current disability has been present during the appeal period.  As such, because the records would not change the threshold determination of the existence of a current disability, the failure to obtain the records is not a pre-decisional duty to assist error as to the tinnitus claim only and the Board may proceed.

Based on the Veteran's very own denials of tinnitus or pertinent symptomology, the Board finds that the current disability requirement for service connection has not been satisfied.  Therefore, the Board finds that the evidence of record persuasively weighs against service connection.  As such, the benefit-of-the-doubt rule does not apply.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th at 776.

REASONS FOR REMAND

All Claims

The Board finds that outstanding medical records may be pertinent to the Veteran's appeals.  No efforts were made to obtain those records prior to the rating decision on appeal, a pre-decisional duty to assist error.  See 38 C.F.R. § 20.802.

First, inquiries made to the Social Security Administration (SSA) regarding the Veteran resulted in Profile and Benefit Data reports which noted that he began receiving SSA disability benefits on January 1, 1998.  No efforts were made to attempt to obtain the SSA disability benefits determination, medical records, or supporting documentation.  This constitutes a pre-decisional duty to assist error which must be corrected upon remand.

As part of a separate, unrelated service connection claim, the Veteran submitted a VA Form 21-4142, Authorization for Release of Information, noting that he had been incarcerated in and treated at a correctional facility from August 1998 to October 2003.  One effort was made to obtain the identified records, but no records were successfully obtained and no further efforts were made.  Other information in the claims file suggests that the Veteran was incarcerated at other facilities, as well, in between active service and the current appeal period.  Given the indication of potentially pertinent medical records, the Board finds that further attempts should be made to obtain the identified records and to afford the Veteran the opportunity to submit any new authorizations and releases.  

In contrast to the tinnitus appeal above with no evidence of the claimed disability during the appeal period, the Veteran has been diagnosed with lumbar degenerative arthritis with DDD and degenerative arthritis of the right hand during the pertinent appeal period.  Further, he has reported symptomology in the right ankle and intermittent PFB.  As such, the Board may not proceed regarding these appeals whereas a decision could be rendered regarding the tinnitus appeal.  

1.	Entitlement to service connection for lumbar degenerative arthritis with DDD is remanded.

The Veteran underwent a VA examination in December
 the Board finds that further attempts should be made to obtain the identified records and to afford the Veteran the opportunity to submit any new authorizations and releases.  

In contrast to the tinnitus appeal above with no evidence of the claimed disability during the appeal period, the Veteran has been diagnosed with lumbar degenerative arthritis with DDD and degenerative arthritis of the right hand during the pertinent appeal period.  Further, he has reported symptomology in the right ankle and intermittent PFB.  As such, the Board may not proceed regarding these appeals whereas a decision could be rendered regarding the tinnitus appeal.  

1.	Entitlement to service connection for lumbar degenerative arthritis with DDD is remanded.

The Veteran underwent a VA examination in December 2024.  The examiner stated that he had a gradual onset of back pain due to work duties in service.  It appeared that the condition during military service may have been acute only.  STRs did not support a chronic diagnosis, disability pattern, or chronicity of care.  Therefore, the claimed condition was less likely than not due to service.

The Veteran sought treatment in service on multiple occasions for back pain (see July 1975, August 1975, September 1975, and August 1976 STRs) and told treating clinicians at the time that he had a history of low back pain but that it was not recorded in his health record.  

The VA examiner did not discuss the Veteran's multiple reports of back pain / history of back pain, merely finding the in-service condition to be acute only based on a lack of chronicity of care.  As the examiner did not establish her basis for finding that multiple reports did not establish chronicity, the Board finds that an addendum opinion is needed before a decision may be rendered.  

2.	Entitlement to service connection for right ankle strain is remanded.

The Veteran experienced a traumatic injury of the right ankle during active service and was diagnosed with a strain.  See October 1974 STR.  He has endorsed current symptomology.  No VA examination was afforded the Veteran prior to the rating decision on appeal.  

The Board finds that the low threshold to necessitate affording a VA examination has been met.  McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).  The failure to provide such constitutes a pre-decisional duty to assist error that should be corrected upon remand.

Regarding all claims remanded herein, the Board is mindful of the holding in Smith v. Wilkie, 32 Vet. App. 332 (2020), and the impact of implicit credibility determinations within remand orders.  The Board does not at this time make any determinations regarding the credibility of any evidence currently of record, to include those described in this remand.

The matters are REMANDED for the following action:

1. Contact the Social Security Administration and request copies of the Veteran's complete SSA records, including any administrative decisions on his application for SSA disability benefits and all underlying medical records.

2. Contact the Veteran and afford him the opportunity to identify and provide any necessary releases or authorizations for pertinent and outstanding records of non-VA treatment, particularly to include records from El Reno Federal Correctional Institution, Lew Sterrett Justice Center, or any other relevant institutions.  Document all attempts to obtain the records in the claims file.  If the records are not able to be secured after making reasonable efforts, provide to the Veteran and his representative the required notice and opportunity to respond. 

3. Following the development in (1)-(2), obtain a VA medical opinion from an appropriate clinician to determine the nature and etiology of the Veteran's claimed lumbar degenerative arthritis with DDD.  The need for an additional examination is left to the clinician providing the opinion.  Following review of the claims file, the clinician is asked to address the following:  

(a.) Determine whether the claimed disability is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) etiologically related to his active service, to include the reports of low back pain in July 1975, August 1975, September 1975, and August 1976.  The clinician should explicitly discuss why these reports constitute an acute condition or chronicity of care.

(b.) In considering any lay statements of record, the clinician should note that the Veteran was competent to attest to matters of which he had first-hand knowledge, including observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the clinician should provide a fully reasoned explanation. 

(c.) If medical literature is relied upon, the clinician should identify and specifically cite each reference material used and discuss how it relates to the Veteran's particular medical history.  The clinician should specifically discuss any contradictory evidence in the
5, August 1975, September 1975, and August 1976.  The clinician should explicitly discuss why these reports constitute an acute condition or chronicity of care.

(b.) In considering any lay statements of record, the clinician should note that the Veteran was competent to attest to matters of which he had first-hand knowledge, including observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the clinician should provide a fully reasoned explanation. 

(c.) If medical literature is relied upon, the clinician should identify and specifically cite each reference material used and discuss how it relates to the Veteran's particular medical history.  The clinician should specifically discuss any contradictory evidence in the claims file and reconcile that evidence with their findings.

(d.) All opinions should be accompanied by supporting rationale explaining how the clinician arrived at the conclusions expressed. 

(e.) If the clinician determines that s/he cannot provide an opinion without resorting to speculation, s/he should explain the inability to provide an opinion, identifying precisely what facts could not be determined.  In particular, s/he should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion.

4. Following the development in (1)-(2), schedule the Veteran for a VA examination from an appropriate clinician to determine the nature and etiology of the claimed right ankle strain. The claims folder should be made available to and be reviewed by the examiner.  All indicated tests and studies should be performed.  Following a review of the record, the examiner is asked to:  

(a.) Identify whether the Veteran has a current right ankle disability or had such a disability at any time during the pendency of this appeal, even if currently resolved.  

NOTE: The examiner is advised that pain, without a diagnosis, can be considered a "disability" for VA purposes if said pain produces functional impairment of earning capacity.  The examiner should specifically discuss the Veteran's lay statements describing ongoing symptomology.

(b.) For each disability identified, determine whether such disability at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) etiologically related to his active service, to include the October 1974 injury.

(c.) In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.  

(d.) If medical literature is relied upon, the examiner should identify and specifically cite each reference material used and discuss how it relates to the Veteran's particular medical history.  The examiner should specifically discuss any contradictory evidence in the claims file and reconcile that evidence with their findings.

(e.) All opinions should be accompanied by supporting rationale explaining how the examiner arrived at the conclusions expressed. 

(f.) If the examiner determines that s/he cannot provide an opinion without resorting to speculation, s/he should explain the inability to provide an opinion, identifying precisely what facts could not be determined.  In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion.

5. After the above development, and any additionally indicated development, has been completed, readjudicate the appeals.

 

 

SHEREEN M. MARCUS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Rachel E. Jensen, 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.