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

Citation Nr: A26069953 Decision Date: 07/30/26 Archive Date: 07/30/26 DOCKET NO. 211221-206953 DATE: July 30, 2026 ORDER Entitlement to service connection for left ear hearing loss is dismissed. Entitlement to service connection for right ear hearing loss is dismissed. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for gastroesophageal reflux disease (GERD) is granted. Entitlement to a rating of 10 percent, but no higher, for lumbosacral strain is granted. FINDINGS OF FACT 1. On August 11, 2025, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw the issue of entitlement to service connection for left ear hearing loss. 2. On August 11, 2025, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw the issue of entitlement to service connection for right ear hearing loss. 3. The Veteran's tinnitus is related to his active duty military service. 4. The Veteran has a current diagnosis of GERD that is related to his active duty military service. 5. During the appeal period, the Veteran's lumbosacral strain is characterized by pain and flare-ups. CONCLUSIONS OF LAW 1. The criteria for dismissal of entitlement to service connection for left ear hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for dismissal of entitlement to service connection for right ear hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. The criteria for entitlement to service connection for tinnitus have been met. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for GERD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 5. The criteria for a rating of 10 percent, but no higher, for lumbosacral strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served on active duty in the United States Navy from June 1985 to August 1990 with service in the Navy Reserve from August 1990 to September 1992. The Veteran also had additional service in the Air Force National Guard from November 2002 to April 2020, to include various periods of active duty for training and inactive duty for training. The rating decision on appeal was issued in November 2021; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the December 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran elected the Hearing option; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran and/or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). The Board did not consider evidence submitted outside this window. In August 2025, the Veteran testified at a hearing held before the undersigned Veterans Law Judge (VLJ). A copy of this transcript is of record. In a November 2021 rating decision, the RO issued a rating decision, that in pertinent part, deferred a decision on entitlement to compensation for a back condition. Subsequently, the RO granted service connection for lumbosacral strain. However, in December 2021, the RO issued a rating decision proposing to sever service connection for lumbosacral strain. In December 2021, the Veteran filed a VA Form 10182 NOD, in pertinent part, with the rating assigned to his lumbosacral strain. In an April 2022 rating decision, the RO severed service connection for lumbosacral strain effective July 1, 2022. There was no valid appeal to the July 1, 2022 rating decision that effectuated the severance. Additionally, the December 2021 VA Form 10182 for the instant appeal predated the severance rating decision by several months. Therefore, the only issues properly on appeal in this appellate stream are listed on the cover page of this decision. 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. Dismissal 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for right ear hearing loss. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.205. In August 2025, prior to the promulgation of a Board decision, the Veteran indicated a wish to withdraw the appeal of the issues of entitlement to service connection left ear hearing loss and entitlement to service connection for right ear hearing loss during a hearing before the undersigned Veterans Law Judge. Thus, the Board finds that the Veteran has explicitly, unambiguously, and with a full understanding of the consequences withdrawn the appeal with respect to the above issues such that there remain no allegations of error of fact or law for appellate consideration with respect to this issue. 38 U.S.C.§ 7105; 38 C.F.R. § 20.205. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). Hence, there remains no allegations of errors of fact or law for appellate consideration for the issues of service connection for left ear hearing loss and service connection for right ear hearing loss. Therefore, this issue is dismissed. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disorder diagnosed after discharge may be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, to include organic diseases of the nervous system (tinnitus), may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time following separation (one year for organic disease of the nervous system). 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent cause. 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 a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the claimant is given the benefit of the doubt. To deny a claim on its merits, the weight of the evidence must persuasively stand against a finding that the evidence is in "approximate balance" or "nearly equal" to the evidence that supports the claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). 3. Entitlement to service connection for tinnitus. The Veteran contends that his tinnitus started during deployment to Iraq in 2005. See August 2025 Hearing Transcript. In a November 2021 rating decision, the RO found that the evidence showed that a qualifying event, injury, or disease had its onset during service. The Veteran's DD 214 showed that he was a cable and antenna systems craftsmen during his military service. The RO also found that the Veteran had been diagnosed with tinnitus. The Board is bound by these favorable findings. The main issue is whether the Veteran's tinnitus is related to his military service. In September 2021, the Veteran was afforded a VA examination for hearing loss and tinnitus. The Veteran reported recurrent tinnitus. He reported that it began in July 2021. The VA examiner opined that it was less likely than not that tinnitus was caused by or a result of military noise exposure. The examiner stated that the Veteran's job duties were considered to have a low probability of hazardous noise exposure. Therefore, his tinnitus was less likely than not related to military noise exposure. Although the Veteran stated that his tinnitus began in July 2021 during his September 2021 VA examination, during his August 2025 hearing, the Veteran clarified that the ringing in his ears probably started on his first deployment to Iraq in 2005. He was by an air base, and there were constant mortar attacks and constant aircrafts taking off and landing. He stated that he noticed the ringing in his ears more now than in active duty. Lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). In this case, the Veteran is competent to describe his in-service recollections of tinnitus, as well as his continuous manifestations of tinnitus since service because this requires only personal knowledge as it comes to him through his senses. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds that the Veteran has credibly reported the continuity and duration of his tinnitus symptoms and his in-service noise exposure. The Board acknowledges the negative September 2021 VA medical opinion regarding the etiology of the Veteran's tinnitus. However, as the Board finds the Veteran's lay statements regarding the onset of his tinnitus to be credible, the Board finds the evidence to be at least in approximate balance as to whether the Veteran's tinnitus is related to his military service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. The appeal is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, supra. 4. Entitlement to service connection for GERD. The Veteran contends that he was diagnosed with GERD in 2019 while he was in Germany. The Veteran contends that he still had symptoms of indigestion and acid reflux currently. See August 2025 Hearing Transcript. In a November 2021 rating decision, the RO found that a nexus, or link had been established between the claimed issue and an in-service event or injury, citing to the October 2021 VA medical opinion. The RO also found that the Veteran's service treatment records showed complaints of GERD in August 2019. The Board is bound by these favorable findings. The main issue is whether the Veteran had been currently diagnosed with a disability. In October 2021, the Veteran was afforded a VA examination for esophageal conditions. The VA examiner noted that the Veteran had been diagnosed with GERD in 2019. However, the VA examiner noted that the condition had resolved. The VA examiner opined that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. This claimed condition was incurred in active service. The VA examiner reported that the Veteran had initial onset of symptoms quite compatible with those seen in GERD during his travel from Boston to Germany for his next service posting. The symptoms persisted after his arrival in Germany and he sought medical evaluation. The history and treatment, as given by the Veteran, was corroborated in his medical records. After a negative stress test to rule out a cardiac cause of his chest pain, he was treated with an H2 blocker (Zantac) and dietary changes with resolution of symptoms. Although the October 2021 VA examiner reported that the Veteran's GERD symptoms had been resolved, the Veteran testified during his August 2025 hearing that he still continued to have symptoms of GERD. The Board notes that the Veteran had some medical training during his time while he was in the Navy as his DD 214 showed that he was a field medic service technician. Considering the Veteran's medical experience, the Board finds that the Veteran is competent to testify to currently experiencing symptoms of GERD that he has had since service. Based on an overall review of the relevant evidence of record, the Board finds that the evidence weighs in favor of the Veteran's claim for service connection for GERD. Entitlement to service connection for GERD is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Increased Ratings Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. It is permissible to switch diagnostic codes to reflect more accurately a claimant's current symptoms. See Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Separate ratings can be assigned for separate periods based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71(a) (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71(a) [or 4.73] criteria."). The veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claims. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (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; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). Additionally, the Board has considered whether an inferred claim for a total disability based upon individual unemployability (TDIU) has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has not alleged, and the record does not establish, that he is unable to obtain and maintain employment due to his service-connected disabilities, that his employment was marginal, or that his employment was otherwise in a protected environment. As such, the Board finds that a claim for a TDIU is not raised in connection with the instant appeal. See Rice v. Shinseki, supra. 5. Entitlement to an initial compensable rating for lumbosacral strain. The Veteran's lumbosacral strain is rated at 0 percent under 38 C.F.R. § 4.71(a), Diagnostic Code 5237. Diagnostic Code 5237 is rated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent disability is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71(a), Diagnostic Codes 5235 through 5243. Note (1): to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Turning to the evidence of record, in October 2021, the Veteran was afforded a VA examination for back conditions. The Veteran was diagnosed with lumbosacral strain. The Veteran reported that after returning from Iraq to the U.S., the Veteran saw a civilian doctor and opted for a course of physical therapy that lasted 8 months. This was successful in relieving all his lower back symptoms. The Veteran stated that he had not had any significant lower back problems since. The VA examiner noted that the Veteran's condition had resolved. Since 2007, the Veteran had worked for the phone company installing fiber optics, which required carrying a heavy ladder. The Veteran had no difficulties with his work duties or recreational activities and was asymptomatic. The examiner reported that the Veteran did not have flare-ups or functional loss or impairment. Initial active range of motion was normal. Passive range of motion was determined to be the same as active range of motion. There was no objective evidence of localized tenderness or pain on palpation. There was no additional loss of function or range of motion after three repetitions. The evidence did not suggest pain, fatigability, weakness, lack of endurance, or incoordination which significantly limited functional ability with repeated use over time. The evidence did not suggest pain, fatigability, weakness, lack of endurance, or incoordination which significantly limited functional ability with flare-ups. The Veteran did not have localized tenderness, muscle spasm, or guarding. The Veteran did not have ankylosis or any other neurologic abnormalities. During the Veteran's August 2025 hearing, the Veteran testified that he still continued to have back pain. The Veteran reported that at the time of the examination, he did not have any flare-ups or symptoms. Based on the foregoing, the Board finds that a rating of 10 percent, but no higher, is warranted for the Veteran's lumbosacral strain under 38 C.F.R. § 4.59 for painful motion. On his October 2021 VA examination, the Veteran did not report any symptoms and there was no loss of range of motion reported. The Board acknowledges the Veteran's statements during his hearing regarding the continuation of pain and flare-ups of his back. The Veteran is competent to report such symptoms. Under 38 C.F.R. § 4.59, a compensable rating can be assigned where there is painful but otherwise noncompensable limitation of movement. Therefore, a rating of no more than 10 percent is warranted for the period on appeal (prior to the severance). (Continued on the next page) ? If the Veteran feels that his symptoms have worsened outside the appeal period, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.