HEARING LOSS

A. J. SPECTOR · 2026 · Case ID: A26040754

MIXED

Summary

The Veteran served from November 1985 to September 1989, with subsequent service in the Reserves and multiple active duty periods until November 2017. The Veteran appeals the denial of service connection for right ear hearing loss and seeks service connection for several other conditions, including an acquired psychiatric disability (depression), erectile dysfunction, residuals of a head injury, heat exhaustion, inguinal hernia, ventral hernia, left shoulder disability, and obstructive sleep apnea. The Board denied service connection for right ear hearing loss, finding that while the July 2020 VA examination showed some degree of hearing loss, it did not meet the VA's criteria for a disability under 38 C.F.R. § 3.385. The Board also noted that the Veteran's June 2019 Reserve audiogram did not meet the criteria, and the Veteran's lay opinion was not competent to establish a disability. The Board found the evidence persuasively weighed against the claim, thus denying service connection. The remaining claims were remanded due to duty to assist errors, including inadequate VA examinations and failure to obtain necessary records or nexus opinions for the psychiatric disability, erectile dysfunction, left shoulder disability, obstructive sleep apnea, residuals of head injury, heat exhaustion, and inguinal/ventral hernias. The Board ordered the AOJ to obtain specific nexus opinions addressing the etiology of these conditions in relation to service, including specific stressors and exposures.

Rationale

July 2020 VA examination showed some hearing loss but did not meet VA criteria.; June 2019 Reserve audiogram did not meet VA criteria.; Veteran's lay opinion not competent to establish disability.; Evidence persuasively weighs against the claim.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210124-138090

Full Decision Text

Citation Nr: A26040754
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 210124-138090
DATE: April 30, 2026

ORDER

Entitlement to service connection for right ear hearing loss is denied.

REMANDED

Entitlement to service connection for an acquired psychiatric disability, claimed as depression is remanded.

Entitlement to service connection for erectile dysfunction is remanded.

Entitlement to service connection for residuals of a head injury is remanded.

Entitlement to service connection for heat exhaustion is remanded.

Entitlement to service connection for inguinal hernia is remanded.

Entitlement to service connection for ventral hernia is remanded.

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

Entitlement to service connection for an obstructive sleep apnea is remanded.

FINDING OF FACT

The evidence of record persuasively weighs against finding that the Veteran has had a right ear hearing loss disability for VA purposes at any time during or approximate to the pendency of the claim

CONCLUSION OF LAW

The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from November 1985 to September 1989, from May 2001 to September 2001, from October 2003 to March 2004, from April 2007 to June 2007, and from August 2017 to November 2017, with additional Reserve service.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2020 rating decision by a Department of Veterans Affairs (VA) Regional Office, which is the Agency of Original Jurisdiction (AOJ).

The Veteran elected the Board's hearing docket in his January 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). The Veteran appeared at a hearing on September 5, 2024; a transcript is of record.

Therefore, the Board may only consider the evidence of record at the time of the September 2020 rating decision, 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. If evidence was submitted either (1) during the period after the AOJ issued the September 2020 rating decision and prior to the September 2024 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, 20.801.

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 claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

For the issues the Board is remanding, any evidence the Board could not consider will be considered by the AOJ in the readjudication of those issues. 38 C.F.R. § 3.103(c)(2)(ii).

1. Entitlement to service connection for right ear hearing loss

The Veteran contends that he has right ear hearing loss as a result of exposure to aircraft noise during his military service.

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).

The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.

The Board concludes that the Veteran does not demonstrate a right ear hearing loss disability for VA purposes pursuant to 38 C.F.R. §
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).

The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.

The Board concludes that the Veteran does not demonstrate a right ear hearing loss disability for VA purposes pursuant to 38 C.F.R. § 3.385 and has not had such demonstrated at any time proximate to, or during, the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). However, not all hearing loss constitutes hearing loss "disability" for VA purposes. To be considered a hearing loss disability for VA purposes, there must be evidence of impaired hearing that meets the criteria of 38 C.F.R. § 3.385. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

The July 2020 VA examination shows some degree of right ear hearing loss, but does not meet the requirements of 38 C.F.R. § 3.385. The Veteran's level of right ear hearing loss is not a disability for VA purposes. The Veteran's treatment records similarly do not contain evidence that the hearing loss meets the requirements of 38 C.F.R. § 3.385.

The Board recognizes that the Veteran believes that a June 2019 audiogram created as part of his Reserve service demonstrates right ear hearing loss for VA purposes. The June 2019 audiogram shows auditory thresholds of 15 at 500 Hertz, 10 at 1000 Hertz, 10 at 2000 Hertz, 25 at 3000 Hertz, and 25 at 4000 Hertz. Therefore, it does not meet the criteria for 38 C.F.R. § 3.385. Although the Veteran had an auditory threshold of 70 at 8000 Hertz, that frequency is not for consideration under 38 C.F.R. § 3.385.

While the Veteran genuinely believes that he has right ear hearing loss caused by service, he does not have the requisite expertise to provide a competent opinion as to whether he has a current hearing loss disability in accordance with VA standards, as such matters require medical expertise. 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). Specifically, the results of an audiogram administered by a state-licensed audiologist are the only type of evidence deemed competent to show a hearing impairment for VA purposes. As such, the Board gives more probative weight to the competent medical evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

Consequently, the Board finds that the Veteran does not have a right ear hearing loss disability for VA compensation purposes. As the evidence is persuasively against the claim, there is no reasonable doubt to be resolved, and service connection for right ear hearing loss must be denied. See 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc); 38 C.F.R. § 3.102.

REASONS FOR REMAND

Initially, the Board notes that the Veteran included his National Guard service dates on his August 2019
, 22 Vet. App. 295, 304 (2008).

REASONS FOR REMAND

Initially, the Board notes that the Veteran included his National Guard service dates on his August 2019 VA Form 21-526EZ, but the claims file does not reflect specific dates or records for periods of ACDUTRA and INACDUTRA. VA has a duty to assist the claimant in obtaining all relevant records pertaining to the claimant's active military service that are held or maintained by a governmental entity, if adequately identified by a claimant. See 38 U.S.C. § 5103A; Sullivan v. McDonald, 815 F.3d 786, 790 (Fed. Cir. 2016). As the record does not show that VA has made any attempt to verify the Veteran's dates of ACDUTRA and INACDUTRA or to obtain service personnel and treatment records for such dates, the Board finds that VA has not made sufficient efforts to assist the Veteran in obtaining the military records identified as part of his claim. Remand is necessary to correct this error. Id.

1. Entitlement to service connection for an acquired psychiatric disability, claimed as depression is remanded.

The July 2020 VA examination provided a negative nexus opinion with the rationale that the Veteran's current diagnosis meets DSM criteria, but there is no evidence that it is related to the Veteran's military service. However, the clinician did not discuss the June 2007 post-deployment assessment regarding the Veteran's deployment in which he reported that he felt he was in danger of being killed during his deployment. An April 2016 treatment note indicates that the Veteran's depressive disorder had its onset in 2009, a few years after that deployment. Failure to address the Veteran's fear of being killed during his deployment renders the opinion inadequate, and accepting the inadequate opinion was a pre-decisional duty to assist error that must be remedied upon remand.

2. Entitlement to service connection for erectile dysfunction is remanded.

Although an April 2020 VA examination found a diagnosis of erectile dysfunction, the examiner did not provide a nexus opinion discussing whether this erectile dysfunction is due to service, to include the deployment stress noted in the August 2019 claim, or toxic exposure risk activity (TERA) consistent with his deployments in Afghanistan and Kuwait. Failure to obtain a nexus opinion was a pre-decisional duty to assist error that must be remedied upon remand.

3. Entitlement to service connection for residuals of a head injury is remanded.

The June 2020 VA examination found that the Veteran has no current diagnosis of traumatic brain injury (TBI) or residuals of TBI. The examiner did not discuss the Veteran's report of being hit in the head by a tie down strap such that he saw stars, which he reported at the examination. The examiner also did not discuss the October 2017 post-deployment assessment in which the Veteran reported hitting his head numerous times while working on aircraft, such that he saw stars, became disoriented, functioned differently, or nearly blacked out. The examiner also found no complaint of impairment of memory, attention, concentration, or executive functions, in spite of the fact that a June 2019 Reserve STR notes that the Veteran reported memory loss over the past 18 months, including two to three episodes of waking up at night not knowing where he was or who his wife was. These deficiencies render the examination inadequate. Accepting the inadequate examination was a pre-decisional duty to assist error that must be remedied upon remand.

4. Entitlement to service connection for heat exhaustion is remanded.

A VA examination was not conducted as to heat exhaustion, in spite of the fact that September 2017 STRs indicate that he was seen for heat exhaustion during service, and post-service treatment records from August 2019 indicate that he has ongoing occasional dizziness that improves with hydration, which is an indication of a current heat exhaustion disability. Failure to obtain a VA examination was a pre-decisional duty to assist error. Upon remand, a VA examination should be scheduled.

5. Entitlement to service connection for inguinal hernia is remanded.

6. Entitlement to service connection for ventral hernia is remanded.

The July 2020 VA examination provided
. Entitlement to service connection for heat exhaustion is remanded.

5. Entitlement to service connection for inguinal hernia is remanded.

6. Entitlement to service connection for ventral hernia is remanded.

The July 2020 VA examination provided a negative nexus opinion with the rationale that the Veteran was noted with a ventral hernia in 2012 and 2016, and a right inguinal hernia with repair in 2018, but he was not noted with a hernia during active duty. The examiner also noted that the Veteran does not currently have a hernia. However, the examiner did not discuss whether the Veteran has any current residuals of hernia, even if the hernias themselves were surgically repaired and are no longer present. Moreover, the examiner did not discuss whether the Veteran's hernias were caused by his heavy aircraft repair work in service, as argued in the August 2019 claim, even if they were not noted in the record until after service. The examination is thus inadequate. Accepting the inadequate examination was a pre-decisional duty to assist error and a new examination must be scheduled upon remand.

7. Entitlement to service connection for a left shoulder disability is remanded.

Although a March 2020 VA examination found a diagnosis of bilateral shoulder strain, the examiner did not provide a nexus opinion as to whether the Veteran's left shoulder disability is related to the Veteran's overhead work in service, as reported in the examination. Failure to obtain a nexus opinion was a pre-decisional duty to assist error that must be remedied upon remand.

8. Entitlement to service connection for an obstructive sleep apnea is remanded.

A March 2020 VA examination found a diagnosis of obstructive sleep apnea but did not discuss whether it was caused by the Veteran's service, to include TERA during his deployments to Kuwait and Afghanistan. Failure to obtain a nexus opinion was a pre-decisional duty to assist error that must be remedied upon remand.

The matters are REMANDED for the following action:

1. Determine all dates of active duty, ACDUTRA, and INACDUTRA during the Veteran's service. The AOJ should prepare a summary of such dates or document for the record why the production of such summary is not possible. Ensure all service personnel and treatment records relating to his service are associated with the claims file.

2. Obtain an addendum opinion regarding the etiology of the Veteran's acquired psychiatric disability, erectile dysfunction, left shoulder strain, and obstructive sleep apnea. Copies of all pertinent records must be made available to the examiner for review. Schedule the Veteran for an examination and/or further testing if deemed necessary by the reviewing clinician.

After reviewing the relevant evidence, the examiner is asked to provide an opinion as to the following:

(a.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's acquired psychiatric disability had its onset in or is otherwise related to service, to include his fear of being killed during his 2007 deployment?

(b.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's erectile dysfunction had its onset in or is otherwise related to service, to include stress and toxic exposure risk activity connected with his deployments?

(c.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's left shoulder strain is related to his service, to include overhead work he performed as part of his military duties?

(d.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's obstructive sleep apnea had its onset in or is otherwise related to service, to include stress and toxic exposure risk activity connected with his deployments?

Each opinion offered must be supported by a complete rationale, citing to supporting factual data and medical literature, as appropriate. If the clinician cannot provide an opinion without resort to speculation, the examiner must state why and what, if any, additional evidence would permit such an opinion to be made.

The clinician is advised that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology, and such reports must be acknowledged and considered in formulating any opinion
as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's obstructive sleep apnea had its onset in or is otherwise related to service, to include stress and toxic exposure risk activity connected with his deployments?

The clinician is advised that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology, and such reports must be acknowledged and considered in formulating any opinion. If the clinician finds any medical reason to reject the lay reports, then they must provide an explanation for such rejection.

The clinician must not rely solely on the absence of diagnosis or treatment in service, or the lack of medical documentation, as the basis for a negative opinion

3. Obtain an examination regarding the etiology of the Veteran's claimed residuals of a head injury, heat exhaustion, and inguinal and ventral hernias. Copies of all pertinent records must be made available to the examiner for review.

After reviewing the relevant evidence, the examiner is asked to provide an opinion as to the following:

(a.) Does the Veteran have any current residuals of a head injury that at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) had its onset during or is otherwise related to service? The examiner must discuss the Veteran's report of being hit in the head with a cargo strap during active duty, which is discussed in the June 2020 examination and a June 2019 private treatment note, and the October 2017 post-deployment assessment in which the Veteran reported hitting his head multiple times on aircraft. If these incidents do not rise to the level of a traumatic brain injury or do not have any current residuals, the examiner must explain why. The examiner is advised that the June 2019 private treatment note indicates that the Veteran reported memory loss over the past 18 months, including 2 to 3 incidents where he woke up at night not knowing where he was or who his wife was.

(b.) Does the Veteran have a current diagnosis of heat exhaustion or any residuals of heat exhaustion that at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) had its onset during service or is otherwise related to his in-service heat exhaustion, which is documented by September 2017 STRs? The examiner is advised that the Veteran has continued to have occasional episodes of dizziness improved with hydration, as reported in an August 2019 treatment record.

(c.) Does the Veteran have current residuals of inguinal and ventral hernias that at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) had their onset during service, or are otherwise related to in-service heavy aircraft repair work? The examiner must address the possibility that the Veteran's hernias were caused by his physically demanding work on aircraft during service, even though they were not formally diagnosed until after service.

Each opinion offered must be supported by a complete rationale, citing to supporting factual data and medical literature, as appropriate. If the clinician cannot provide an opinion without resort to speculation, the clinician must state why and what, if any, additional evidence would permit such an opinion to be made.

The clinician is advised that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology, and such reports must be acknowledged and considered in formulating any opinion. If the clinician finds any medical reason to reject the lay reports, then they must provide an explanation for such rejection.

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The clinician must not rely solely on the absence of diagnosis or treatment in service, or the lack of medical documentation, as the basis for a negative opinion

A. J. Spector

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A. Budd, 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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