Case A26040984

Summary

The veteran, who served from June 2003 to May 2012, appeals decisions related to sleep apnea, left lower extremity (LLE) sciatic nerve radiculopathy, and bilateral hearing loss. The Board dismissed the appeal for sleep apnea as untimely, noting the veteran filed the Notice of Disagreement years after the initial denial without requesting an extension or providing good cause. The appeal for LLE sciatic nerve radiculopathy was dismissed as moot because the agency of original jurisdiction (AOJ) had already granted service connection for this condition in a prior decision. Similarly, the appeal for right ear hearing loss was dismissed as moot, as the Board itself had previously granted service connection for this condition in a separate, earlier decision. For the left ear hearing loss claim, the veteran contended he had a current disability and hazardous noise exposure in service. However, a July 2024 VA audiological examination showed normal hearing in the left ear, with thresholds well below the VA disability compensation threshold. The Board found the veteran's lay testimony regarding hearing loss, while competent, lacked the specific audiometric findings required for VA purposes and afforded it little probative weight. The weight of the evidence did not competently show a current left ear hearing loss, leading to a denial of service connection for this condition.

Full Decision Text

Citation Nr: A26040984
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 250529-548708
DATE: April 30, 2026

ORDER

Entitlement to service connection for sleep apnea is dismissed.

Entitlement to service connection for left lower extremity (LLE) sciatic nerve radiculopathy is dismissed. 

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

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

FINDINGS OF FACT

1. In the May 2025 VA Form 10182 (Notice of Disagreement), the Veteran attempted to appeal the October 2019 rating decision's denial of service connection for sleep apnea (in pertinent part); he did not request an extension of time to appeal the October 2019 rating decision or provide good cause for this untimely appeal. 

2. In the May 2025 Notice of Disagreement, the Veteran expressly appealed the issue of "service connection" for LLE radiculopathy of the sciatic nerve and listed the December 2024 rating decision (in pertinent part); the December 2024 rating decision granted entitlement to service connection for LLE radiculopathy of the sciatic nerve. 

3. In an April 2026 decision (Docket No. 250612-553909), the Board of Veterans' Appeals (Board) granted entitlement to service connection for right ear hearing loss. 

4. The Veteran does not have a current left ear hearing loss disability for VA purposes.

CONCLUSIONS OF LAW

1. The criteria for dismissal of the untimely appeal of service connection for sleep apnea (based on noncompliance with claims processing rules) have been met.  38 C.F.R. §§ 3.109, 20.202, 20.203; Hall v. McDonough, 34 Vet. App. 329, 333 (2021); Ferko v. McDonough, 37 Vet. App. 262 (2024).  

2. The criteria for dismissal of the appeal of service connection for LLE sciatic nerve radiculopathy (based on mootness) have been met.  38 U.S.C. §§ 511(a), 7104(a); Godsey v. Wilkie, 31 Vet. App. 207, 218 (2019); Long v. Principi, 17 Vet. App. 555, 557 (2004); Concepcion-Maldonado v. Collins, 38 Vet. App. 294, 302 (2025).

3. The criteria for dismissal of the appeal for service connection for right ear hearing loss (based on mootness) have been met.  38 U.S.C. §§ 511(a), 7104(a); Godsey v. Wilkie, 31 Vet. App. 207, 218 (2019); Long v. Principi, 17 Vet. App. 555, 557 (2004); Concepcion-Maldonado v. Collins, 38 Vet. App. 294, 302 (2025).

4. The criteria for entitlement to service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.385.

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REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Preliminary Matters

The Veteran served on active duty from June 2003 to May 2012.

The issue of entitlement to service connection for left ear hearing loss comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a U.S. Department of Veterans Affairs (VA) Regional Office (RO), which is the agency of original jurisdiction (AOJ).  In an October 2024 rating decision, the AOJ denied that claim (in pertinent part).  

In a May 2025 VA Form 10182 (Notice of Disagreement), the Veteran timely appealed the October 2024 rating decision's denial of service connection for left ear hearing loss to the Board (in pertinent part) and elected the Direct Review docket. Therefore, regarding this claim, the Board may only consider the evidence of record at the time of the October 2024 AOJ decision on appeal.  38 C.F.R. § 20.301. Any evidence submitted after the AOJ 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
 Form 10182 (Notice of Disagreement), the Veteran timely appealed the October 2024 rating decision's denial of service connection for left ear hearing loss to the Board (in pertinent part) and elected the Direct Review docket. Therefore, regarding this claim, the Board may only consider the evidence of record at the time of the October 2024 AOJ decision on appeal.  38 C.F.R. § 20.301. Any evidence submitted after the AOJ 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, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

In the May 2025 VA Form 10182 (Notice of Disagreement), the Veteran attempted to appeal the issue of service connection for right ear hearing loss, citing an April 1, 2025 rating decision (with an April 8, 2025 notification letter). That rating decision identified a duty to assist error as to this issue, without adjudicating the merits. After conducting development, the AOJ confirmed and continued a prior denial of service connection for the right ear in an April 25, 2025 rating decision (with an April 28, 2025 notification letter).  The Board construes the May 2025 Notice of Disagreement as attempting to appeal the April 25, 2025 rating decision's denial of service connection for right ear hearing loss.  See 38 C.F.R. § 20.202(a).

1. Entitlement to service connection for sleep apnea is dismissed.

In the May 2025 Notice of Disagreement, the Veteran attempted to appeal an October 2019 rating decision's denial of service connection for sleep apnea.  

Generally, "a claimant, or his or her representative, must file a properly completed Notice of Disagreement with a decision by the agency of original jurisdiction within one year from the date that the agency mails the notice of the decision."  See 38 C.F.R. § 20.203(b).  "An extension of the period for filing a Notice of Disagreement or a request to modify a Notice of Disagreement may be granted for good cause. A request for such an extension must be in writing and must be filed with the Board. Whether good cause for an extension has been established will be determined by the Board."  38 C.F.R. § 20.203(c).

The Board may dismiss an appeal for noncompliance with claims processing rules, including those governing timeliness. See Hall v. McDonough, 34 Vet. App. 329, 333 (2021); see also Ferko v. McDonough, 37 Vet. App. 262 (2024).  

Here, the Veteran filed the May 2025 VA Form 10182 (Notice of Disagreement) years after notification of the October 2019 rating decision denying service connection for sleep apnea. He did not request an extension of time to file this Notice of Disagreement or provide good cause why this appeal was untimely.  

The Board finds that the May 2025 VA Form 10182 was an untimely attempt to appeal the October 2019 rating decision's denial of service connection for sleep apnea, in violation of applicable claims processing rules.  The Board cannot otherwise liberally construe the May 2025 VA Form 10182 as a timely appeal of the issue of entitlement to service connection for sleep apnea because no AOJ decision adjudicated that issue in the year before the Veteran filed the May 2025 VA Form 10182.

In conclusion, the issue of entitlement to service connection for sleep apnea is dismissed as untimely for noncompliance with applicable claims processing rules.  There is no indication that VA waived or forfeited such rules here.  

2. Entitlement to service connection for LLE sciatic nerve radiculopathy is dismissed. 

"All questions in a matter which under section 511(a) of this title is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. Final decisions on such appeals shall be made by the Board."  38 U.S.C. § 7104(a). "The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision
 conclusion, the issue of entitlement to service connection for sleep apnea is dismissed as untimely for noncompliance with applicable claims processing rules.  There is no indication that VA waived or forfeited such rules here.  

2. Entitlement to service connection for LLE sciatic nerve radiculopathy is dismissed. 

"All questions in a matter which under section 511(a) of this title is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. Final decisions on such appeals shall be made by the Board."  38 U.S.C. § 7104(a). "The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans." 38 U.S.C. § 511(a).

A case or controversy ceases to exist, and a case becomes moot "when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Godsey v. Wilkie, 31 Vet. App. 207, 218 (2019) (citations omitted). When the relief sought by an appeal has been accomplished, the appropriate course of action is to dismiss the matter as moot. See Long v. Principi, 17 Vet. App. 555, 557 (2004).  "...[M]ootness is a case-specific inquiry" based on consideration of "the individual circumstances of the appeal and the implications for appellant's ability to obtain full relief."  See Concepcion-Maldonado v. Collins, 38 Vet. App. 294, 302 (2025).

Here, in the May 2025 VA Form 10182 (Notice of Disagreement), the Veteran attempted to appeal the issue of "service connection" for LLE radiculopathy of the sciatic nerve, citing a December 2024 rating decision.  However, the December 2024 rating decision granted service connection for LLE radiculopathy of the sciatic nerve. Thus, the AOJ already fully granted the benefit sought on appeal for this issue.

In a July 2025 informal hearing presentation (IHP), the Veteran's representative stated that the May 2025 VA Form 10182 "appears to challenge service connection [for LLE radiculopathy of the sciatic nerve] which appears to be in error."  The representative asked the Board to afford the Veteran an opportunity to clarify this issue. 

Where a VA Form 10182 is unclear as to the issues appealed, 38 C.F.R. § 20.202(f) requires the Board to contact the appellant to request clarification. Section 20.202(f), entitled "Unclear Notice of Disagreement," states that if the Board receives a timely Notice of Disagreement but cannot identify the issues appealed or the review option selected, then the Board will contact the appellant to request clarification of intent. 

Here, in the May 2025 Notice of Disagreement, the Veteran clearly and unambiguously expressed his intent to appeal the issue of "service connection" for LLE radiculopathy of the sciatic nerve, listing the December 2024 rating decision. In the July 2025 IHP, the Veteran's representative speculatively suggested that this aspect of the May 2025 Notice of Disagreement may have been in error.  However, the representative notably did not attempt to clarify this issue in the IHP (or any other correspondence), by specifying which, if any, other issue adjudicated in the December 2024 rating decision regarding this disability the Veteran had intended to appeal.  

Even assuming for the sake of argument (without conceding) that the Veteran had not intended to appeal the expressly listed issue of "service connection" for LLE radiculopathy, the Board finds that the Veteran and his representative have had ample opportunity to communicate such clarification to VA; however, they have failed to do so, including in the July 2025 IHP.   (Notably, 38 C.F.R. § 20.202(c)(2) sets forth procedures for when a claimant may modify information in a Notice of Disagreement, and such procedures were not followed here.)

In summary, the Board finds that the May 2025 VA Form 10182 clearly attempted to appeal the issue of "service connection" for the LLE disability, citing the December 2024 rating decision (which fully granted that claim).  Thus, the Board has no duty to request further clarification on this point.  

In conclusion, the AOJ fully granted the benefit sought on appeal as to the issue of entitlement to service connection for LLE radiculopathy of the sciatic nerve.  Therefore, there is no remaining case or controversy for the
. § 20.202(c)(2) sets forth procedures for when a claimant may modify information in a Notice of Disagreement, and such procedures were not followed here.)

In summary, the Board finds that the May 2025 VA Form 10182 clearly attempted to appeal the issue of "service connection" for the LLE disability, citing the December 2024 rating decision (which fully granted that claim).  Thus, the Board has no duty to request further clarification on this point.  

In conclusion, the AOJ fully granted the benefit sought on appeal as to the issue of entitlement to service connection for LLE radiculopathy of the sciatic nerve.  Therefore, there is no remaining case or controversy for the Board to adjudicate as to this issue, and it is dismissed as moot.

3. Entitlement to service connection for right ear hearing loss is dismissed.

"All questions in a matter which under section 511(a) of this title is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. Final decisions on such appeals shall be made by the Board."  38 U.S.C. § 7104(a).  "The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans." 38 U.S.C. § 511(a).

A case or controversy ceases to exist, and a case becomes moot "when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Godsey, 31 Vet. App. at 218 (citations omitted). When the relief sought by an appeal has been accomplished, the appropriate course of action is to dismiss the matter as moot. See Long, 17 Vet. App. at 557.  "...[M]ootness is a case-specific inquiry" based on consideration of "the individual circumstances of the appeal and the implications for appellant's ability to obtain full relief."  See Concepcion-Maldonado, 38 Vet. App. at 302.

Here, in an April 2026 decision (Docket No. 250612-553909), the Board granted entitlement to service connection for right ear hearing loss.  That Board decision fully granted the benefits sought on appeal here, in this separate appeal stream.  Therefore, there is no remaining case or controversy for the Board to adjudicate as to this issue, and it is dismissed as moot.

4. Entitlement to service connection for left ear hearing loss is denied.

The Veteran claims entitlement to service connection for left ear hearing loss.  He contends that he has a current left ear hearing loss disability that is etiologically related to active service, to include hazardous noise exposure.  

Service connection is warranted on a direct basis using a three-element test: (1) the existence of a current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).

Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307.

Hearing loss is considered an organic disease of the nervous system, which is a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015).

Hearing loss is considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores, using the Maryland CNC test, are
 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015).

Hearing loss is considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; when the thresholds for at least three of these frequencies 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.

Service connection may only be granted for a disability present during the pendency of the appeal; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 14 (1992) (Congress specifically has limited entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). 

"In the absence of proof of a present disability there can be no valid claim." See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). For a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the appeal. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). 

In this case, the Veteran had a July 2024 VA audiological examination.  The left ear pure tone thresholds, in decibels, were reported as follows:

  HERTZ	500 	1000 	2000	3000 	4000 

	 15 dB	15 dB	5 dB	15 dB	10 dB

Speech audiometry revealed speech recognition ability of 98 percent in the left ear.  The examiner found that the Veteran's left ear had normal hearing.   

Based on a full review of the evidence of record (summarized above), the weight of the evidence does not competently show a current left ear hearing loss for VA disability compensation benefits purposes.  38 C.F.R. § 3.385.

The Board considered the Veteran's contention that he has a current left ear hearing loss disability.  He competently described general hearing loss symptoms he experiences, such as difficulty hearing his wife.  See July 2024 VA audiological examination.  However, as a lay person, he is not competent to self-diagnose a current left ear hearing loss disability for VA purposes, which requires specific audiometric findings as defined by the relevant regulations.  Such audiometric findings require specialized audiological or medical training, knowledge, and expertise.  Therefore, the Board affords such lay evidence little probative weight to establish a current left ear hearing loss disability for VA purposes.  

In conclusion, the evidence persuasively weighs against the claim for service connection for left ear hearing loss. As such, the appeal is denied.  Since the evidence is not at least in approximate balance, the benefit of the doubt rule does not apply.  

 

R. JANOFSKY

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Stratton, C.

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.