MALIGNANT NEOPLASMS OF THE RESPIRATORY SYSTEM

M. C. GRAHAM · 2026 · Case ID: A26040562

GRANTED

Summary

The Veteran, a Veteran who served from December 1963 to December 1967, appeals the denial of service connection for bilateral hearing loss and tinnitus, and a lung disability, initially noted as a spot on the lung. The Board granted service connection for mesothelioma, finding it was at least as likely as not caused by asbestos exposure, a finding binding from a prior rating decision. The Veteran also claimed entitlement to an earlier effective date for this grant. For bilateral hearing loss, the Board noted the Veteran's MOS of rifleman/infantry suggests a high probability of noise exposure, and a favorable finding from a prior rating decision established an in-service event. While service treatment records and the separation examination were silent for hearing loss, and the Veteran reported onset 15-20 years post-service, a VA examiner opined the loss was less likely than not service-related due to lack of nexus to military noise. However, a private nexus opinion from the Veteran's treating otolaryngologist stated it was very probable that a significant amount of the severe bilateral sensorineural hearing loss was secondary to artillery and aircraft carrier noise exposure during service. The Board found the evidence in equipoise, granting service connection for bilateral hearing loss based on the benefit of the doubt doctrine. Tinnitus was granted secondary to the service-connected hearing loss, supported by a VA examiner's opinion that tinnitus is a symptom associated with hearing loss.

Rationale

Mesothelioma granted based on prior favorable finding; Benefit of doubt afforded due to equipoise with private opinion; Claim for earlier effective date also granted

Special Benefit

NO SPECIAL BENEFIT

Docket No.

250325-522355

Full Decision Text

Citation Nr: A26040562
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 250325-522355
DATE: April 30, 2026

ORDER

Entitlement to service connection for mesothelioma is granted.

Entitlement to service connection for bilateral hearing loss is granted.

Entitlement to service connection for tinnitus, secondary to service-connected bilateral hearing loss, is granted.

FINDINGS OF FACT

1. The fact that the Veteran's mesothelioma is at least as likely as not caused by the Veteran's toxic exposure to asbestos was a favorable finding made in a September 2025 rating decision and is binding on the Board.

2. The evidence is at least in relative equipoise that the Veteran's bilateral hearing loss is due to service.

3. The Veteran's tinnitus is proximately due to his service-connected bilateral hearing loss.

CONCLUSIONS OF LAW

1. The criteria for service connection for mesothelioma are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for service connection for tinnitus, secondary to service-connected bilateral hearing, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 1963 to December 1967. The Board of Veterans' Appeals (Board) thanks the Veteran for his service to our country.

The Veteran was initially denied service connection for bilateral hearing loss and tinnitus in an August 2023 rating decision, issued by a Department of Veterans Affairs (VA) Regional Office, known as the agency of original jurisdiction (AOJ). However, due to a notification error related to the August 2023 rating decision, the AOJ issued another rating decision in March 2024, which again denied service connection for bilateral hearing loss and tinnitus.

Additionally, the Veteran was initially denied service connection for a lung disability (noted as lung (spot on)) in a December 2024 AOJ rating decision.

In the March 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held in January 2026, and a transcript of the hearing is of record. During the hearing, the undersigned Veterans Law Judge (VLJ) granted the motion from the Veteran's representative for this claim to be advanced on the docket (AOD) due to the Veteran's advanced age.

Generally, the Board may only consider the evidence of record at the time of the March 2024 (for bilateral hearing loss and tinnitus) and December 2024 (for a lung disability, to include mesothelioma) AOJ rating decisions on appeal, as well as any evidence submitted by the Veteran or 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. In addition, the Veteran has not made a clear request to the Board to consider identified evidence submitted to the Board in connection with an earlier AMA appeal. Cash v. Collins, at 7, No. 24-1811, Fed. Cir. (2026).

In the March 2025 VA Form 10182, the Veteran identified the rating decision on appeal for a lung disability as the March 26, 2024, rating decision. However, the March 26, 2024 (with notification on March 27, 2024) AOJ rating decision did not address a lung disability. Rather, the record indicates a December 27, 2024 (with notification on December 31, 2024) AOJ rating decision denied the Veteran's claim for a lung disability (noted as lung (spot on)). Reading the March 2025 VA Form 10182 in the light most favorable to the Veteran and as noted during the Board hearing, the Board has construed his
).

As a final initial matter, regarding the Veteran's claim of entitlement to service connection for a lung disability, to include mesothelioma, following the December 2024 AOJ rating decision on appeal, a September 2025 AOJ rating decision granted service connection for mesothelioma effective March 25, 2025. However, the Board notes that the grant does not cover the entire appeal period in front of the Board. Specifically, the appeal period in front of the Board begins with the Veteran's January 25, 2024, claim for lung (spot on) pleural disease. See January 2024 VA Form 21-526EZ. Therefore, the current appeal is not moot, as granting of the current appeal could lead to an earlier effective date. See Johnson v. Collins, 38 Vet. App. 151 (2025); Green v. McDonough, 37 Vet. App. 127 (2024). Accordingly, the Board has recharacterized the Veteran's claim of lung (spot on) to include mesothelioma. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009).

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). 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).

Certain chronic diseases (including tinnitus and sensorineural hearing loss as organic diseases of the nervous system) may be presumed to have been incurred in service if it becomes manifest to a degree of 10 percent or more within a specified period of time post-service (one year for the aforementioned diseases). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 § C.F.R. 3.303(b).

Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. 38 CFR § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. §
ki, 708 F.3d 1331 (Fed. Cir. 2013). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 § C.F.R. 3.303(b).

Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. 38 CFR § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310; see also Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023) (holding all that is needed is a "but for" causation or aggravation to show entitlement to secondary service connection).

Further, the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act) allows for service connection for a disability due to a Veteran's participation in a toxic exposure risk activity (TERA). See 38 U.S.C. § 1168. Pursuant to the PACT Act, where a Veteran submits a service connection claim with evidence of a disability and evidence of participation in a TERA during active military service and such evidence is not sufficient to establish service connection for the disability, the Secretary shall provide the Veteran with a medical examination and secure a nexus opinion, unless VA determines that there is no assertion that the claimed disorder is related to the TERA. Id.

Additionally, a Veteran who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. 38 C.F.R. § 3.307(a)(7). If a Veteran served at Camp Lejeune during the time frame specified, the diseases of kidney cancer, liver cancer, non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia, and other myelodysplastic syndromes, and bladder cancer shall be service-connected even though there is no record of such disease during service. 38 C.F.R. § 3.309(f). The diseases listed in § 3.309(f) shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(7)(ii).

The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995).

A claimant bears the evidentiary burden to establish entitlement to the benefit sought. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The benefit of the doubt applies when the evidence for and against is in "approximate balance" or "nearly equal," but does not
entiary burden to establish entitlement to the benefit sought. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The benefit of the doubt applies when the evidence for and against is in "approximate balance" or "nearly equal," but does not apply when the evidence persuasively favors one side or the other. Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021).

1. Entitlement to service connection for a lung disability, to include mesothelioma.

The Veteran contends service connection is warranted for a lung disability (claimed as lung (spot on)) due to service, specifically his toxic exposure to asbestos and Camp Lejeune contaminated water. See January 2024 VA Form 21-526EZ.

Following the December 2024 rating decision on appeal, a September 2025 AOJ rating decision awarded service connection for mesothelioma based on the July 2025 VA examiner's finding that the disability was at least as likely as not caused by the Veteran's toxic exposure to asbestos. The effective date of the grant was March 25, 2025, the date of receipt of his claim for mesothelioma. See March 2025 VA Form 21-526EZ.

However, the current appeal is not moot, as granting of the claim could lead to an earlier effective date. See Green v. McDonough, 37 Vet. App. 127, 136-48 (2024); see also Warren v. McDonald, 28 Vet. App. 214, 221 (2016) (holding that a subsequent AOJ decision cannot divest the Board of jurisdiction over the prior appeal; therefore, an AOJ grant of service connection cannot finally decide the claim of service connection already on appeal to the Board).

In this case, the Veteran was afforded a VA examination in September 2024. The VA examiner noted a chest x-ray from that month indicated "nodular cystic foci primarily in the left upper lobe with chronic appearing interstitial changes bilaterally. Recommend correlation with CT of the chest." However, the VA examiner remarked that a diagnosis was not warranted for the Veteran's claimed disability, as the "diagnostic doesn't support a [d]iagnosis." In a November 2024 supplemental medical opinion, the VA examiner indicated the Veteran needs to follow-up with a specialist for a diagnosis, as more testing is needed.

In December 2024, the Veteran was afforded another examination. At that time, the VA examiner remarked in part that the Veteran "had an X ray in September 2024 which does not show anything concrete and the radiologist recommended a CT of the chest. The veteran states that he [just had a] CT in the last six months. I was not able to find a chest CT in the VA folder....The veteran does not have a diagnosis of a pulmonary condition. The X ray from September 2024 shows nodular cystic foci primarily in the left upper lobe with chronic appearing interstitial changes bilaterally, [w]hich is not a diagnosis by itself. A specialized pulmonology opinion would be needed to render a diagnosis."

In a September 2025 rating decision, the AOJ awarded service connection for mesothelioma based on a finding that mesothelioma was at least as likely as not due to asbestos exposure in service. Absent clear and unmistakable error, which is not shown here, this represents a favorable finding that is binding on the Board. 38 CFR § 3.104(c).

Furthermore, within 90 days of the January 2026 hearing, the Veteran submitted an undated letter from his pulmonologist, Dr. F. D., which noted the Veteran "was diagnosed with mesothelioma in January 2025.... In addition to this diagnosis, [the Veteran] has a history of pleural effusion that was first identified approximately 14 years ago, contributing to ongoing breathing difficulties and complications with lung function." See medical treatment records received in March 2026. Given this opinion, in addition to the findings in the 2024 radiology reports, and affording the Veteran the benefit of any doubt, the Board finds that the Veteran has had mesothelioma since the current claim was filed in 2024. Accordingly, service connection for mesothelioma is
, the Veteran submitted an undated letter from his pulmonologist, Dr. F. D., which noted the Veteran "was diagnosed with mesothelioma in January 2025.... In addition to this diagnosis, [the Veteran] has a history of pleural effusion that was first identified approximately 14 years ago, contributing to ongoing breathing difficulties and complications with lung function." See medical treatment records received in March 2026. Given this opinion, in addition to the findings in the 2024 radiology reports, and affording the Veteran the benefit of any doubt, the Board finds that the Veteran has had mesothelioma since the current claim was filed in 2024. Accordingly, service connection for mesothelioma is warranted.

2. Entitlement to service connection for bilateral hearing loss.

The Veteran contends service connection is warranted for bilateral hearing loss due to service, to include his military occupational specialty (MOS). See January 2023 VA Form 21-526EZ; January 2024 VA Form 21-4138.

The March 2024 rating decision on appeal provided the following favorable findings for bilateral hearing: 1) the evidence shows that a qualifying event, injury, or disease had its onset during service, as the Veteran's MOS of rifleman/infantry is conceded as high probability of military noise exposure, and 2) the Veteran was diagnosed with bilateral sensorineural hearing loss at the April 2023 VA examination. The Board is bound by favorable findings absent a clear and unmistakable error. 38 C.F.R. § 3.104(c).

Accordingly, the Board must determine whether the Veteran's bilateral hearing loss had its onset during service, was noted in service or within a year of discharge with continuous symptoms since, manifested to a degree of 10 percent within the first post-service year, or is at least as likely as not related to an in-service injury, event, or disease.

In addition to the law set forth above, under VA guidelines hearing loss will be considered a disability for VA disability compensation purposes 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 3 of the frequencies 500, 1000, 2000, 3000 or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

Turning to the evidence of record, a review of the Veteran's service audiograms does not show findings consistent with hearing loss for VA purposes during service. 38 C.F.R. § 3.385; see service treatment records received in March 2023. Moreover, the record also does not include post-service treatment records documenting hearing loss for VA purposes that manifested to a degree of 10 percent within the first post-service year. Rather, the first mention of issues related to the claimed disability was in July 2022, when it was noted that the Veteran requires hearing aids. See VA treatment records received in February 2023.

In April 2023, the Veteran was afforded a VA examination. At that time, the Veteran reported his hearing loss began "15-20 years" ago. The VA examiner endorsed a diagnosis of bilateral sensorineural hearing loss. In an accompanying medical opinion, the VA examiner opined the Veteran's bilateral hearing loss is less likely than not due to service, noting "STRs and Separation Exam are silent for hearing loss. Veteran reports onset of hearing decrease as 35 years post-separation after exposure to recreational noises such as lawn equipment, power tools, guns, music, and/or occupational noise doing pipe installation in construction. Although noise exposure is conceded in the Infantry which has a high probability for hazardous noise exposure and the relationship between noise, auditory damage and hearing loss is well documented, auditory damage and hearing loss are not conceded based on noise alone. There is no evidence to support a nexus to relate current hearing loss to military noise & not another etiology. Therefore, it is less likely as not that the current hearing loss is related to military noise exposure."

Conversely, within 90 days of the January 2026 hearing, the Veteran submitted a private nexus opinion from J.S., M.D., his treating otolaryngologist, dated January 2026, noting "the patient has severe bilateral sensorineural hearing loss. It [i]s very probable that a significant amount of his hearing loss is secondary to his time [i]n the service having been around heavy artillery and aircraft carrier." See medical treatment records received in March 2026.

The Board finds both examiners to be competent and credible, and their opinions as to the Veteran's
& not another etiology. Therefore, it is less likely as not that the current hearing loss is related to military noise exposure."

The Board finds both examiners to be competent and credible, and their opinions as to the Veteran's bilateral hearing loss are probative as to the issue at hand, as they were based on the Veteran's record and provide an explanation that contains clear conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

In view of the above, the Board concludes that the evidence is at least in equipoise that the Veteran's bilateral hearing loss is due to service. In-service events are not required to be the sole cause of a disability in order for that disability to be service-connected. As such, service connection for bilateral hearing loss is warranted, as there is an approximate balance of positive and negative evidence. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

3. Entitlement to service connection for tinnitus.

As outlined above, the Board has granted the Veteran's appealed issue to establish service connection for bilateral hearing loss. The Board notes that the April 2023 VA medical opinion states that the Veteran's tinnitus is at least as likely as not "a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss." This finding appears consistent with the Veteran's own statements at the April 2023 VA examination, as he noted his tinnitus did not begin in service but rather "10 years ago."

VA must consider complications as claims for secondary service connection if they are raised during the adjudication of the primary disability. Bailey v. Wilkie, 33 Vet. App. 188 (2021); Wilson v. McDonough, 35 Vet. App. 103 (2022). As such, the Board finds entitlement to service connection for tinnitus, as secondary to the Veteran's bilateral hearing loss, is warranted. 38 C.F.R. § 3.310.

M. C. GRAHAM

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board S. Black, Associate 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.

Analyze in VA Law Explorer