HEARING LOSS

M. TENNER · 2026 · Case ID: A26040870

DENIED

Summary

The veteran, who served in the United States Army from March 1974 to August 1974, with subsequent National Guard/Reserve service, appealed the denial of service connection for a right ear hearing loss, a right knee disability, and a left knee disability. The Board dismissed the appeal for right ear hearing loss, finding it was not properly before the Board as it was not adjudicated in the rating decision being appealed and the veteran failed to perfect the legacy appeal or opt into the modernized review system. The Board denied service connection for the right and left knee disabilities, concluding there was insufficient evidence of a current disability. The veteran's lay statements regarding continuous knee pain since service were found not credible due to inconsistencies with post-service treatment records that did not mention knee complaints. The Board also determined that VA had no duty to obtain a medical examination for the knee claims, as the veteran's lay statements alone were insufficient to establish a current disability or support a diagnosis, and the evidence did not meet the criteria for a nexus opinion. The Board found the evidence persuasively against the knee claims and denied them.

Rationale

Claim not adjudicated in the rating decision being appealed; Veteran failed to perfect legacy appeal or opt into modernized review system; Dismissed due to procedural defect

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

240607-446086

Full Decision Text

Citation Nr: A26040870
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 240607-446086
DATE: April 30, 2026

ORDER

The appeal for service connection for a right ear hearing loss disability is dismissed.

Service connection for a right knee disability is denied.

Service connection for a left knee disability is denied.

FINDINGS OF FACT

1. The matter of service connection for a right ear hearing loss disability was not adjudicated by the VA Regional Office in April 2024 or May 2024 rating decisions, and was therefore not appealable in the June 2024 VA Form 10182.

2. There is no probative evidence of a current right or left knee disability.

CONCLUSIONS OF LAW

1. The criteria for dismissal of the appeal for service connection for a right ear hearing loss disability have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20,104, 20.201, 20.202, 20.203.

2. The criteria for service connection for a bilateral knee disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1974 to August 1974 in the United States Army, with additional service in the Army National Guard/Reserves.

The rating decision on appeal was issued in April 2024 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In June 2024, the Veteran filed a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the April 2024 rating decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the rating decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 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(s), considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Service Connection

VA provides compensation for disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d).

Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Evidence is not in approximate balance or nearly equal, and therefore the benefit-of-the-doubt rule does not apply when the evidence persuasively favors one side or the other. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

1. The appeal for service connection for a right ear hearing loss disability is dismissed.

The Board may dismiss any appeal which does not allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. The Board shall decide all questions pertaining to its jurisdictional authority to review
the doubt to the claimant. 38 U.S.C. § 5107(b). Evidence is not in approximate balance or nearly equal, and therefore the benefit-of-the-doubt rule does not apply when the evidence persuasively favors one side or the other. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

1. The appeal for service connection for a right ear hearing loss disability is dismissed.

The Board may dismiss any appeal which does not allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. The Board shall decide all questions pertaining to its jurisdictional authority to review a particular case. The Board may dismiss any case over which it determines it does not have jurisdiction. 38 C.F.R. § 20.104(c).

In April 2013, the VA Regional Office denied service connection for a right ear hearing loss disability. The Veteran expressed her timely disagreement with the determination, and a Statement of the Case was issued in April 2017. The Veteran, however, did not perfect her appeal by filing a timely VA Form 9 or substantive appeal, rendering the April 2013 determination final.

In June 2023, the Veteran submitted an Intent to File, and within one year, she filed a VA Form 21-526EZ seeking service connection for a left ear hearing loss disability, tinnitus, a bilateral foot disability, a bilateral knee disability, asthma, and a lumbar spine disability.

The VA Regional Office adjudicated each of the above claims in April 2024 and May 2024 rating decisions.

In response to the April 2024 and May 2024 rating decisions, the Veteran filed a VA Form 10182 in June 2024. Among the claims included on the Form 10182 was "bilateral hearing loss."

In an August 2024 decision, the Board dismissed the appeal for service connection for right ear hearing loss because that claim was not adjudicated in the April 2024 or May 2024 rating decision. The Board determined that proper claims processing rules had not been followed, and dismissed the appeal due to procedural defect. The Veteran appealed that determination to the United States Court of Appeals for Veterans Claims (Court).

In September 2025, the Court vacated the August 2024 Board decision on the claim for right ear hearing loss, and remanded the matter to the Board for development consistent with the parties' Joint Motion for Partial Remand (Joint Motion). The Board's decision was vacated because prior to dismissing the claim, the Board failed to inform the Veteran of the jurisdictional defect and provide her with an opportunity to cure it through the submission of additional evidence, argument, or by requesting a hearing pursuant to 38 C.F.R. § 20.104(c).

In compliance with the September 2025 Joint Motion and the provisions of 38 C.F.R. § 20.104(c), the Board sent the Veteran a letter in February 2026. The letter informed the Veteran of the specific procedural defect regarding the claim for service connection for a right ear hearing loss disability, and provided her with 60 days from the date on which the notice was mailed to present any argument or evidence on the jurisdictional question, and/or request a hearing on the matter. No response to the February 2026 letter, including a hearing request, was received.

VA regulations provide that a VA Form 10182 must be submitted within one year of the rating decision being appealed. 38 C.F.R. § 20.203. Here, no rating decision adjudicating the matter of service connection for right ear hearing loss was issued one year prior to the June 7, 2024, VA Form 10182. The June 7, 2024, VA Form 10182 additionally does not meet any requirement for opting the claim for right ear hearing loss into the modernized review system from the legacy system. See 38 C.F.R. §§ 3.2400, 19.2.

As such, the proper claims processing rules have not been followed, and the appeal must be dismissed due to procedural defect. 38 U.S.C. § 7105(d); 38 C.F.R. § 20.104; Hall v. McDonough, 34 Vet. App. 329 (2021).

2. Service connection for a right knee disability is denied.

3. Service connection for a left knee disability is denied.

The Veteran seeks service connection for a right and left knee disability. The April 2024 rating decision on appeal contains no favorable findings regarding the presence of such current disabilities. The Veteran reports that her current bilateral knee pain was caused by the general rig
2400, 19.2.

2. Service connection for a right knee disability is denied.

3. Service connection for a left knee disability is denied.

In the August 2024 decision, the Board denied the claims due to a lack of evidence of a current right or left knee disability. The Veteran appealed that determination to the Court.

In September 2025, the Court vacated the August 2024 Board decision on the bilateral knee claims, and remanded the matters to the Board for development consistent with the parties' Joint Motion. In the Joint Motion, the parties found that the Board erred in failing to address whether the Veteran's assertions of continuous pain since service were sufficient to trigger VA's duty to obtain a VA examination. The Board will address the concerns of the parties in the discussion below.

Turning to the evidence, the record contains VA and private post-service treatment records dating back to 2013. A thorough review of these treatment records, however, reveals no complaints, diagnoses, or treatment related to either the right or left knee. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). Where the probative evidence establishes that where a Veteran does not currently have a disorder for which service connection is sought, service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992).

In this regard, the Board has considered the decision of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit found that pain alone can serve as a functional impairment and therefore qualify as a disability. The Federal Circuit limited its holding, however, stating, "we do not hold that a veteran could demonstrate service connection simply by asserting subjective pain-to establish a disability, the veteran's pain must amount to a functional impairment. To establish the presence of a disability, a veteran will need to show that his pain reaches the level of a functional impairment of earning capacity." Id. at 1367-68.

Here, the record contains neither subjective nor objective reports of pain with functional impairment of earning capacity related to a right or left knee disability. Indeed, a close review of the entirety of the Veteran's pleadings and correspondence reveals no information concerning the functional impairment of earning capacity due to these conditions. As such, Saunders is inapplicable.

In light of the concerns of the parties, the Board has also considered the fact that a VA medical opinion was not obtained to address the etiology of the disabilities. VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (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 service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). The Board does not find that the initial requirement of McLendon, competent evidence of a current disability or persistent or recurrent symptoms of a disability, has been satisfied, even considering the Veteran's lay reports.

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition, (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has not been shown to have the medical training or expertise to be competent to render an opinion as to the medical diagnosis of a bilateral knee disability. Kahana v. Shinseki, 24 Vet. App. 428 (2011) (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.) While she is certainly competent to report pain, this alone is insufficient to constitute a right or left knee diagnosis, particularly in the absence of any functional impairment of earning capacity. Additionally, no medical records contemporaneous with the claim support the lay assertions, and the Veteran's symptoms have not been supported by a later diagnosis by a medical professional.

The Board also finds the Veteran's reports of continuous knee symptoms since active service are inconsistent with the other evidence of record, and thus not credible. Caluza v. Brown, 7 Vet. App. 498 (1995) (in determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). The fact that she sought treatment for other conditions after service, but not a right or left disability, is a factor that the Board has considered when determining whether the conditions were present in and persisted since discharge. As discussed, the claims file contains post-service treatment records dating back to 2013 documenting other complaints without mention of a right or left knee disability in the earliest records. Because she described other complaints and provided overall assessments of her health and functioning to her general practitioners, without mention of a right or left knee disability, it is reasonable to conclude that none was present.

For these reasons, the Veteran's statements alone are insufficient to warrant a medical examination as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. See, e.g., Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). VA was thus under no duty to obtain a medical opinion as to the bilateral knee disability, and no pre-decisional duty to assist error in this regard occurred.

For all of the above reasons, the Board finds the evidence is persuasively against the claims and they must be denied. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application.

M. Tenner

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board J. Smith, 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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