Citation Nr: A26018317 Decision Date: 03/02/26 Archive Date: 03/02/26 DOCKET NO. 201112-120944 DATE: March 2, 2026 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for headaches is denied. Entitlement to service connection for visual impairment is denied. Entitlement to service connection for a right knee condition is denied. Entitlement to service connection for abdominal pain is denied. REMANDED Entitlement to service connection for temporal mandible joint disease (TMJD) is remanded. Entitlement to service connection for a left wrist strain is remanded. FINDINGS OF FACT 1. The competent evidence does not show that the Veteran has current bilateral hearing impairment that meets the criteria for a hearing loss disability for VA purposes. 2. The evidence of record does not show that the Veteran has a diagnosed headache disability. 3. The Veteran has refractive errors of the eyes, which is not a disability for VA purposes. 4. The evidence of record does not show that the Veteran has a diagnosed right knee disability. 5. The evidence of record does not show that the Veteran has a diagnosed disability related to his abdominal pain. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss disability are not met. 38 U.S.C. §§ 1110, 5107 (2025); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2025). 2. The criteria for entitlement to service connection for headaches have not been met. 38 U.S.C. §§ 1110, 5107 (2025); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2025). 3. The criteria for service connection for visual impairment have not been met. 38 U.S.C. §§ 1110 (2025); 38 C.F.R. § 3.303 (2025). 4. The criteria for entitlement to service connection for a right knee condition have not been met. 38 U.S.C. §§ 1110, 5107 (2025); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2025). 5. The criteria for entitlement to service connection for abdominal pain have not been met. 38 U.S.C. §§ 1110, 5107 (2025); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2025). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2012 to November 2017. These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2019 and February 2020 rating decisions by the Department of Veterans Affairs (VA). In the November 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held before the undersigned Veterans Law Judge in November 2024. A transcript of the hearing is of record. Related to the issue of entitlement to service connection for a left wrist disability, the Board notes that in the November 2020 VA Form 10182 the Veteran identified the November 2019 rating decision to appeal rather than the later February 2020 rating decision. The Veteran is permitted to do this by case law, as the VA Form 10182 was filed within a year of the November 2019 rating decision. See Terry v. McDonough, 37 Vet. App. 1 (2023). However, it is more favorable to the Veteran for the Board to instead liberally interpret the VA Form 10182 as challenging the later February 2020 rating decision, as such includes a longer appeal period as it relates to the issue of entitlement to service connection for a left wrist disability. Therefore, for the issues of entitlement to service connection for a bilateral hearing loss disability, headaches, visual impairment, a right knee condition, abdominal pain, and TMJD, the Board may only consider the evidence of record at the time of the November 2019 agency of original jurisdiction (AOJ) decision on appeal. For the issue of entitlement to service connection for a left wrist disability, the Board may only consider the evidence of record at the time of the February 2020 AOJ rating decision on appeal. The Board may also consider any evidence submitted by the Veteran 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. 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 issues of entitlement to service connection for a bilateral hearing loss disability, headaches, visual impairment, a right knee condition, and abdominal pain, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the issues of entitlement to service connection for TMJD and a left wrist strain, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those issues. 38 C.F.R. § 3.103(c)(2)(ii). Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). VA must provide a medical examination 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 VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In the absence of a current diagnosed disability, service connection cannot be granted for such disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A condition that results in functional impairment can be considered a disability for VA purposes. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When the evidence persuasively favors one side or the other, the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). 1. Entitlement to service connection for a bilateral hearing loss disability. The Veteran contends that he is entitled to service connection for a bilateral hearing loss disability as he reported experiencing hazardous noise exposure during his service due to his work on flight decks. See November 2024 Hearing Transcript. The Board concludes that the competent evidence indicates that the Veteran does not have a current bilateral hearing loss disability for VA purposes and service connection is therefore not warranted. Hearing loss will be considered to be 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; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores utilizing recorded Maryland CNC word lists are less than 94 percent. See 38 C.F.R. § 3.385 (2025). ? In the VA audiological evaluation in November 2019, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 5 LEFT 15 15 10 0 Average puretone thresholds were 7.5 in the right ear and 10 in the left ear. Word recognition scores were 94 in the right ear and 96 in the left ear. Upon review of the above, the Board finds the Veteran has not met the threshold of hearing loss for either ear required to be considered impaired for VA purposes at any time during this appeal. All of the threshold levels in the 500, 1000, 2000, 3000, and 4000 Hz frequencies were below 40 decibels; none of these frequencies showed thresholds of 26 decibels or greater; and speech recognition scores utilizing recorded Maryland CNC word lists were not less than 94 percent. As stated above, 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) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Therefore, evidence must show that at some point during the current appeal period the Veteran has the disability for which benefits are being claimed. The Board recognizes that the Veteran is competent to report his hearing difficulty. Here, however, as noted above, the evidence does not establish that he has a diagnosable bilateral hearing loss disability that meets the criteria of 38 C.F.R. § 3.385 at any time during the current appeal period. In the absence of a current disability, the analysis ends, and the claim for service connection for a bilateral hearing loss disability cannot be granted. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the evidence is against this claim, the benefit of the doubt rule is not applicable, and the claim is denied. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); 38 C.F.R. § 3.102. 2. Entitlement to service connection for headaches. The Veteran contends that he is entitled to service connection for headaches as he reports that he began to have headaches during his service due to the loud environment and the stress of his job. See November 2024 Hearing Transcript. As an initial matter, the Board acknowledges that the Veteran was not afforded a VA examination in connection with this issue prior to the November 2019 rating decision on appeal. However, a threshold matter to trigger this duty by VA is that the evidence demonstrates a current disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The record does not contain any evidence that the Veteran had a current headache disability or recurrent symptoms of a headache disability. Thus, as this element was not demonstrated at the time of the November 2019 rating decision, the requirement for such being a fundamental tenant in the AMA, VA did not err in its duty to assist by not providing the Veteran with a VA examination in connection with this service connection issue. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. As discussed, there is no evidence the Veteran has been diagnosed with a headache disability, or that he experiences any symptoms related to a headache condition with resulting functional impairment. Because the evidence reflects that the Veteran does not have a current headache disability, service connection is not warranted. The Board acknowledges the Veteran's hearing testimony from the November 2024 Board hearing regarding his current head pain, his experiences in service related to his head pain, and the evidence submitted during the 90-day period after his hearing showing a log of his head pain. However, under the AMA, the Board may only remand an issue for the correction of a duty to assist error, such as the failure to provide an adequate VA examination, when this error was evident prior to the date of the AOJ decision on appeal. As explained above, the evidence of record at the time of the November 2019 rating decision did not trigger VA's duty to provide a VA examination in connection with this issue. There was no indication of a current disability, or of an in-service event. Accordingly, there has been no pre-decisional duty to assist error in that regard and remand for a VA examination is not warranted. McLendon, 20 Vet. App. at 83. The Veteran is notified that while the Board does not have the authority to remand the Veteran's claim for further development, he is encouraged to file a Supplemental Claim and submit or identify any new and relevant evidence which might establish the presence of a current disability and its relationship to service. 38 C.F.R. § 3.250 (2025). 3. Entitlement to service connection for visual impairment. The Veteran contends he is entitled to service connection for visual impairment as he is nearsighted and he reported that he experiences eye pain when he has a headache, which he contends he first experienced in service. See November 2024 Hearing Transcript. An enlistment medical examination from August 2012 noted that the Veteran's distant vision was 70/20 in both eyes, and it was indicated that he wore glasses for distant vision. See Service Treatment Records submitted in August 2019. 38 C.F.R. § 3.303 (a) states service connection connotes many factors but basically it means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces. 38 C.F.R. § 3.303 (c) states congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303 (c) also states refractive error of the eye are not diseases or injuries within the meaning of applicable legislation. Defects are static conditions that are incapable of improvement or deterioration, whereas diseases are capable of such progression. See O'Bryan v. McDonald, 771 F.3d 1376, 1381 (Fed. Cir. 2014). A congenital defect, however, can still be subject to superimposed disease or injury. VAOPGCPREC 82-90. If such superimposed disease or injury does occur, service connection may be warranted for the resulting disability. Id. The Board acknowledges the Veteran's statements regarding his visual acuity and his reports of eye pain related to his head pain. The Veteran is competent to provide statements relating to symptoms or facts of events that he observed and are within the realm of his personal knowledge. However, there is no probative evidence of any eye disability as opposed to refractive errors, such as nearsightedness. Refractive errors are not diseases or injuries for VA purposes. While the Veteran was noted to wear glasses in service and have nearsightedness, there was no evidence of a superimposed injury. Additionally, while the Veteran reported experiencing eye pain when he had headaches, there is no evidence of an eye disability due to the conditions of the Veteran's service. Therefore, service connection is not warranted, and the claim must be denied. Accordingly, the most probative evidence of record persuasively weighs against the claim of entitlement to service connection. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt rule does not apply, and service connection is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 4. Entitlement to service connection for a right knee condition. The Veteran contends that he is entitled to service connection for a right knee condition as he reports that he began to experience right knee pain during service due to going up and down ladders and constantly squatting down and lifting bombs that weighed 500, 1000, and 2000 pounds. See November 2024 Hearing Transcript. As an initial matter, the Board acknowledges that the Veteran was not afforded a VA examination in connection with this issue prior to the November 2019 rating decision on appeal. However, a threshold matter to trigger this duty by VA is that the evidence demonstrates a current disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The record does not contain any evidence that the Veteran had a current right knee disability or recurrent symptoms of a right knee disability. Thus, as this element was not demonstrated at the time of the November 2019 rating decision, the requirement for such being a fundamental tenant in the AMA, VA did not err in its duty to assist by not providing the Veteran with a VA examination in connection with this service connection issue. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. As discussed, there is no evidence the Veteran has been diagnosed with a right knee disability, or that he experiences any symptoms related to a right knee condition with resulting functional impairment. Because the evidence reflects the Veteran does not have a current right knee disability, service connection is not warranted. The Board acknowledges the Veteran's hearing testimony from the November 2024 Board hearing regarding his current right knee pain, his limited range of motion, and his experiences in service related to his right knee pain. However, under the AMA, the Board may only remand an issue for the correction of a duty to assist error, such as the failure to provide an adequate VA examination, when this error was evident prior to the date of the AOJ decision on appeal. As explained above, the evidence of record at the time of the November 2019 rating decision did not trigger VA's duty to provide a VA examination in connection with this issue. There was no indication of a current disability, or of an in-service event. Accordingly, there has been no pre-decisional duty to assist error in that regard and remand for a VA examination is not warranted. McLendon, 20 Vet. App. at 83. The Veteran is notified that while the Board does not have the authority to remand the Veteran's claim for further development, the Veteran is encouraged to file a Supplemental Claim and submit or identify any new and relevant evidence which might establish the presence of a current disability and its relationship to service. 38 C.F.R. § 3.250 (2025). 5. Entitlement to service connection for abdominal pain. The Veteran contends that he is entitled to service connection for abdominal pain as he reports that he began to experience acid reflux type pain after eating during service. See November 2024 Hearing Transcript. As an initial matter, the Board acknowledges that the Veteran was not afforded a VA examination in connection with this issue prior to the November 2019 rating decision on appeal. However, a threshold matter to trigger this duty by VA is that the evidence demonstrates a current disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The record does not contain any evidence that the Veteran had a current disability related to his abdominal pain or recurrent symptoms of a disability related to his abdominal pain. Thus, as this element was not demonstrated at the time of the November 2019 rating decision, the requirement for such being a fundamental tenant in the AMA, VA did not err in its duty to assist by not providing the Veteran with a VA examination in connection with this service connection issue. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. As discussed, there is no evidence that the Veteran has been diagnosed with a disability related to his abdominal pain, or that he experiences any symptoms related to an abdominal condition with resulting functional impairment. Because the evidence reflects the Veteran does not have a current disability related to his abdominal pain, service connection is not warranted. The Board acknowledges the Veteran's hearing testimony from the November 2024 Board hearing regarding his current abdominal pain, and his experiences in service related to his abdominal pain. However, under the AMA, the Board may only remand an issue for the correction of a duty to assist error, such as the failure to provide an adequate VA examination, when this error was evident prior to the date of the AOJ decision on appeal. As explained above, the evidence of record at the time of the November 2019 rating decision did not trigger VA's duty to provide a VA examination in connection with this issue. There was no indication of a current disability, or of an in-service event. Accordingly, there has been no pre-decisional duty to assist error in that regard and remand for a VA examination is not warranted. McLendon, 20 Vet. App. at 83. The Veteran is notified that while the Board does not have the authority to remand the Veteran's claim for further development, the Veteran is encouraged to file a Supplemental Claim and submit or identify any new and relevant evidence which might establish the presence of a current disability and its relationship to service. 38 C.F.R. § 3.250 (2025). REASONS FOR REMAND 1. Entitlement to service connection for TMJD. The Veteran contends that he is entitled to service connection for TMJD as he reports that during boot camp, he had three wisdom teeth successfully extracted but they were unable to extract the last one. The Veteran reported that his mouth was wide open for three hours during this procedure and he began to notice jaw pain and clicking when he opened his mouth that he did not have before. See November 2024 Hearing Transcript. Turning to the evidence, service treatment records from April 2017 indicate that during an oral exam, the examiner noted bilateral popping in the Veteran's temporomandibular joint (TMJ). The Veteran also reported a history of pain when opening his jaw. See Service Treatment Records submitted in August 2019. As there is evidence of a current disability, evidence establishing a possible in-service event, and an indication that the disability may be associated with the Veteran's service but insufficient competent medical evidence to decide the claim, the Board finds that VA's duty to assist was triggered. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board notes that the Veteran was never given a VA examination for his claimed TMJ condition, nor was an opinion obtained regarding service connection. This is a pre-decisional duty to assist error. Accordingly, remand is warranted to afford the Veteran a VA examination to obtain a medical nexus opinion regarding the etiology of the claimed TMJ condition. 2. Entitlement to service connection for a left wrist strain. The Veteran contends that he is entitled to service connection for a left wrist strain as he reported that during service, he had to lift heavy bombs, and he began to experience left wrist pain. The Veteran also reported a specific instance in service where he was loading bomb racks quickly and he smashed his left wrist in between the bomb rack and another rack. See February 2020 VA Examination; see also November 2024 Hearing Transcript. The Veteran was afforded a VA examination in February 2020 wherein the VA examiner indicated that the Veteran had a diagnosis of a left wrist strain. The Veteran also reported in this examination that his left wrist condition began in 2014 during service as he had to lift heavy bombs and he noticed left wrist pain at that time. The VA examiner opined that the Veteran's current left wrist strain was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner reasoned that the Veteran has one document in November 2015 where he lists a painful left wrist and relevant evidence shows that the Veteran had an x-ray of his left hand in April 2016 that was normal. The VA examiner continued that there was no mention of a left wrist injury in 2015, no left wrist x-rays, and the Veteran's file was silent for any treatment of a left wrist condition immediately upon service discharge or in the years from 2017 until present day. The VA examiner concluded that there was no evidence of chronicity of care or a chronic left wrist condition. The Board finds the February 2020 VA opinion to be inadequate as it relies on the absence of evidence in the Veteran's medical records during and after service. Despite the Veteran's competent lay statements regarding the onset of his left wrist pain during service and the continuity of this pain, the examiner's opinion failed to consider whether lay statements presented sufficient evidence of the etiology of the Veteran's disability such that his claim could be proved without contemporaneous medical evidence. As the VA opinion of record is found to be inadequate, a remand is necessary to obtain an adequate opinion on the etiology of the Veteran's currently diagnosed left wrist strain. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his claimed TMJ condition or any other possible disability related to his jaw. The examiner should review the claim file, including this REMAND, and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Identify any and all diagnoses related to the Veteran's claimed TMJ condition. (b.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any of the Veteran's diagnoses related to the TMJ were incurred in or otherwise related to his active service? In providing this opinion, the examiner should specifically discuss the Veteran's service treatment records from April 2017 that indicate that during an oral exam the examiner noted bilateral popping in the Veteran's TMJ and the Veteran reported a history of pain when opening his jaw. See Service Treatment Records submitted in August 2019. The examiner must provide a comprehensive report including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. 2. Forward the claim file along with a copy of this REMAND to a clinician with appropriate expertise to provide an opinion to determine the etiology of the Veteran's left wrist strain. The examiner should conduct a thorough review of the claim file and note such review was conducted. Thereafter, the examiner should provide an opinion as to the following: (a.) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's left wrist strain was incurred in or caused by the claimed in-service injury, event, or illness? The examiner is reminded that they cannot rely solely on the absence of evidence in the Veteran's service treatment records and medical records after service without a proper foundation. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Melissa Cook, 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.