When the Board Splits the Baby: BVA A25037997 and the Brutal Logic of 38 C.F.R. § 3.385

Case Citation: A25037997 | Decision Year: 2025 | Judge: S. B. Mays

VA conceded he was exposed to hazardous noise as a helicopter aircrewman. VA's own examiner diagnosed him with bilateral sensorineural hearing loss. The Board still denied service connection. Sixteen claims went up on appeal. Three were decided on the merits. All three were denied. The other thirteen were remanded for development that should have happened years ago.

This is the case that breaks veterans' brains. You can have the in-service event admitted. You can have a current diagnosis on paper from a licensed VA audiologist. You can still lose. The reason is a single regulation that most veterans have never read in detail, and the way the Board applied it here is a master class in why hearing loss claims fail at rates that don't match other conditions.

I want to walk through this case carefully because it's actually two stories layered on top of each other. The hearing loss denial is the headline. But the thirteen-claim remand sitting underneath it is, in some ways, the more useful story for any veteran with a file full of pending issues and a TERA pathway that VA hasn't taken seriously.

The Hook

The veteran served on active duty in the Army from April 1994 to January 2002. His military occupational specialty was Helicopter Utility Aircrewman. If you've ever stood near a UH-60 with the rotors turning, you know what kind of noise environment that is. The Regional Office, to its credit, conceded the in-service noise exposure outright. That concession is a favorable finding under the appeal-period rule that makes such findings binding on the Board unless rebutted by clear and unmistakable error.

He filed for sixteen separate conditions: bilateral hearing loss, a brain lesion of the right tentorium, vertigo, TMJ, dental pain, left ventricular hypertrophy, a left shoulder strain, a lumbosacral strain, left forearm pain, right wrist pain, right lower hip quadrant pain, hernia and right groin pain, bilateral lower extremity radiculopathy, plus a left ribcage scar and a left wrist scar. Through January 2023, February 2023, April 2023, May 2023, and July 2023 rating decisions, the RO worked through them. He filed a higher-level review request in July 2023, which was denied in November 2023. He took it to the Board on a direct review docket in February 2024.

In April 2025, Veterans Law Judge S. B. Mays issued the decision. Three claims got merits adjudication: bilateral hearing loss, left ribcage scar, and left wrist scar. All three were denied. The other thirteen were remanded back to the RO with explicit instructions to obtain service personnel records that had never been associated with the file, to develop a comprehensive TERA memorandum identifying all relevant toxic exposures, to obtain outstanding VA and non-VA treatment records, and to obtain new VA medical opinions that adequately consider lay evidence and apply the proper legal standards.

That last instruction is the one I want you to sit with. The Board found that VA's existing medical opinions on thirteen conditions were inadequate. Not just incomplete. Not just unhelpful. Inadequate as a matter of law. That's a duty-to-assist failure across more than half the file.

What Happened (The Quick Version)

• Service: United States Army, April 1994 to January 2002. MOS: Helicopter Utility Aircrewman.
• Claimed conditions (sixteen total): Bilateral hearing loss, left ribcage scar, left wrist scar, brain lesion of the right tentorium, vertigo, TMJ, dental pain, left ventricular hypertrophy, left shoulder strain, lumbosacral strain, left forearm pain, right wrist pain, right lower hip quadrant pain, hernia pain and right groin pain, right lower extremity radiculopathy, left lower extremity radiculopathy.
• Procedural history: Prior denials and deferrals in January, February, April, May, and July 2023 rating decisions. November 2023 higher-level review affirmed the denials. February 2024 appeal to the Board on the direct review docket.
• Favorable findings (binding on the Board):
• In-service noise exposure conceded based on MOS.
• Service treatment records confirm a left ribcage scar and a left wrist scar documented on October 11, 1994.
• New and relevant evidence sufficient to readjudicate multiple previously closed claims.
• Board outcome (April 2025):
• Hearing loss: denied on the merits.
• Left ribcage scar: denied on the merits.
• Left wrist scar: denied on the merits.
• Thirteen other conditions: remanded for service personnel records, TERA development, treatment records, and new medical opinions.
• Connection theory: Direct service connection for hearing loss (noise exposure to current sensorineural diagnosis). Mixed direct and presumptive theories for the remanded conditions, with TERA exposure as a central undeveloped pathway.
• Nexus quality: Adequate as a legal artifact (the VA examiner did provide a rationale), but unfavorable to the veteran.

Why This Matters to You

If you're filing for hearing loss based on in-service noise exposure, this case is the answer to a question you may not have known to ask: what does VA actually require beyond noise exposure and a current hearing diagnosis? The answer is a specific audiometric threshold under 38 C.F.R. § 3.385, and if your audiogram doesn't cross that threshold, the rest of your file doesn't matter. And if you're sitting on a file with multiple claims, some of which depend on toxic exposure during qualifying service, the second half of this decision shows you exactly what an undeveloped TERA pathway looks like and what the Board does about it.

Why This Case Matters

• 38 C.F.R. § 3.385 is a hard numerical gate, not a clinical judgment call. A licensed audiologist can diagnose you with sensorineural hearing loss, and if your puretone thresholds and speech recognition scores don't meet the § 3.385 numbers, VA does not recognize a disability. The diagnosis on the page is not enough.
• Conceded in-service exposure does not survive a failed current-disability prong. This veteran had the in-service noise concession. He still lost because the disability prong of the Shedden three-element test was not satisfied.
• An "adequate" examination can be the examination that sinks you. The Board found the January 2023 VA audiology exam and the January 2023 scars exam both adequate and highly probative. That's a finding cut directly against the veteran. Adequacy is a procedural concept, not an outcome one.
• A thirteen-claim remand for TERA development is its own diagnostic. When the Board remands more than half a file for the RO to do basic toxic-exposure development that should have happened in 2023, that's a systemic failure pattern. If your file has Persian Gulf or Southwest Asia or aviation-platform exposure and you've never seen a TERA memo, the same pattern is probably affecting you.

What the Board Said

On the legal threshold for hearing loss as a disability:

For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.

That's the gate. Three independent ways to meet it. Any one of them gets you in. None of them got him in.

On the audiology examination results:

The examination results include auditory thresholds at the frequencies set forth in VA regulations at 3000 and 4000 Hertz for the right and left ears. However, the examination results do not reflect puretone thresholds of 26 decibels or greater for at least three frequencies from 500 to 4000 Hertz in either ear; Maryland CNC speech recognition scores are no lower than 96 percent.

Read that paragraph against the regulation. He had some thresholds at 3000 and 4000 Hz. He did not have three frequencies at 26 decibels or greater. His speech recognition was 96 percent or better. He missed all three gates in § 3.385. The diagnosis of sensorineural hearing loss exists. The disability for VA purposes does not.

On the examiner's nexus rationale:

The VA examiner opined that the Veteran's bilateral sensorineural hearing loss is less likely than not related to military noise exposure during service, explaining that the "[V]eteran had normal hearing sensitivity at entrance to and separation from military service. Current hearing loss is more likely due to his 20 year history of noise exposure post military service."

This is the second knife. Even if § 3.385 had been satisfied, the examiner attributed his hearing loss to twenty years of post-service noise exposure. The Board notes this rationale and treats it as adequate under the standards for medical opinion weight.

On the disability prong as the cornerstone:

The existence of a current disability is the cornerstone of a claim for VA disability compensation.

One sentence. It does the entire work of the denial.

On the scar claims and the absence of current findings:

However, the examiner specifically reported that having examined the Veteran, there were no scars on the Veteran's trunk or left upper extremity. The examiner specifically entered into the report that there was no evidence of a left ribcage scar or a left wrist scar.

The service treatment records from October 11, 1994 confirmed the scars existed at enlistment. The 2023 examination found no scars in those locations. The Board treated the in-service notation as a favorable finding for in-service occurrence and then denied for failure of the current-disability prong. Same logical structure as the hearing loss denial. Different facts, identical result.

The First Precedent: Shedden v. Principi (Fed. Cir. 2004). The Three-Element Test

Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004) sets out the three elements of a direct service connection claim. You need (1) medical evidence of a current disability, (2) medical or, in some cases, lay evidence of an in-service event, injury, or disease, and (3) a nexus between the in-service event and the current disability.

The structure is conjunctive. All three elements have to be satisfied. If any single one fails, the claim fails. That's the framework the Board uses to deny this hearing loss claim. In-service noise exposure was conceded, satisfying element two. But element one (current disability, as that term is defined by § 3.385) was not satisfied. Game over. The Board did not even need to engage element three, although the examiner's negative nexus opinion would have failed that prong too.

This is why veterans get confused when they read denials. They look at the in-service event and think, "But VA admitted I was exposed to noise." Yes, and that admission does exactly nothing if the current-disability prong is not independently satisfied. Each element stands or falls on its own.

The Second Precedent: Hensley v. Brown (1993). What Normal Hearing Actually Means

Hensley v. Brown, 5 Vet. App. 155 (1993) is the case veterans cite when they want to argue that "normal" hearing on a military audiogram is not the same as "no hearing loss." Hensley says the threshold for normal hearing is 0 to 20 decibels. Anything above 20 decibels shows some degree of hearing loss, even though it doesn't meet § 3.385's higher thresholds for VA disability purposes.

That distinction matters in two situations. First, it matters when an examiner says the veteran's hearing was "normal" at separation, because Hensley allows the veteran to argue that subclinical hearing damage may have been present even though it didn't meet 25 decibels of shift. Second, it matters in a presumptive context where you have to show 10 percent disability within one year of separation under the chronic-disease framework.

Here, neither situation rescued the claim. The Board explicitly found that the record did not demonstrate hearing loss during service or post-service symptoms within the presumptive window. So the chronic-disease pathway under § 3.309(a) and § 3.307 was foreclosed. Hensley remained as background law, but it did not move the result.

If you're filing a hearing loss claim, the Hensley argument is one to have ready. It is not a winner on its own. It is a setup for the audiogram comparison: enlistment thresholds versus separation thresholds versus current thresholds. A shift across that timeline, even within Hensley's "normal" range, is the kind of evidence that can move an examiner's opinion on nexus.

The Third Precedent: Brammer v. Derwinski (1992). No Disability, No Claim

Brammer v. Derwinski, 3 Vet. App. 223 (1992) is the case the Board quotes for the proposition that "in the absence of proof of a present disability, however, there necessarily can be no valid claim." Brammer is forty-plus years old and it is doing work in BVA decisions every week.

The rule is simple. Congress has limited service connection to cases where a service-connected disease or injury has resulted in actual disability. Not exposure. Not risk. Not subclinical findings. Actual present disability. The Board used Brammer twice in this decision, once to anchor the hearing loss denial and once to anchor the scar denials. Both denials turn on the same point: the in-service event existed, the current disability did not.

For hearing loss specifically, Brammer combines with § 3.385 to create a binary outcome. Either you cross the regulatory thresholds or you don't. There is no partial credit for "some hearing loss" or "evidence of damage." The threshold is the threshold.

The Fourth Precedent: Saunders v. Wilkie (Fed. Cir. 2018). Pain as Disability

Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) is the Federal Circuit decision that pain alone, when it results in functional impairment, can be a disability even without a specific underlying diagnosis. Saunders shows up in this decision because the Board cites it as part of the general legal framework, and because several of the remanded conditions are pain-based diagnoses (left forearm pain, right wrist pain, hernia pain, lower extremity radiculopathy described as pain with numbness and tingling).

Saunders matters for the remand half of the decision more than the denial half. The remanded pain claims will be re-examined, and if those examinations document functional impairment, Saunders provides the legal basis for finding a disability even without a single named etiology. That's the door the remand is opening.

It does not help the hearing loss claim, because § 3.385 is a more specific regulation that controls the hearing-loss analysis. You don't get to use Saunders to overcome § 3.385's audiometric requirements. Pain functional impairment is one pathway. Hearing loss disability is a separate pathway with its own specifically numerical gate.

The Four Remand Failures, In Detail

The Board did not call these examiner failures. They are agency failures, plural, and they happened at the development stage before any examination occurred. Here is the verbatim remand instruction:

Remand for corrective action regarding: (1) identification and obtaining of service personnel records; (2) development of comprehensive TERA memorandum identifying all relevant toxic exposures; (3) identification and obtaining of outstanding VA and non-VA treatment records; (4) obtaining new VA medical opinions for various conditions with adequate consideration of lay evidence and proper legal standards.

Each numbered item is its own duty-to-assist failure. Walking through them:

• Service personnel records. This veteran's file went up to the Board without his full personnel records identified or obtained. Personnel records often contain assignment histories, duty-station documentation, and unit-level exposure information that service treatment records do not capture. For an aircrewman, personnel records can establish flight hours, deployment locations, and platform-specific exposure data. The RO did not develop this. The Board is ordering it.

• TERA memorandum. This is the big one. A comprehensive TERA memorandum identifying all relevant toxic exposures is exactly what the PACT Act framework requires when a veteran's service profile suggests qualifying exposure. Aviation MOS during the 1990s into the early 2000s opens potential exposure pathways including JP-8 fuel, hydraulic fluids, deployed locations, and other airframe-related contaminants. The Board is telling the RO that whatever exposure development happened so far is not enough. A comprehensive memorandum has to be produced.

• VA and non-VA treatment records. The Board specifically notes that no post-service treatment records had been associated with the claims file. Think about that. Sixteen claims on appeal. Three of them denied on the merits at the Board level. And the veteran's post-service treatment records were not in the file. That is a duty-to-assist failure of the most basic kind.

• Inadequate VA medical opinions. The Board found that the medical opinions in the file did not adequately consider lay evidence and did not apply the proper legal standards. The remand requires new opinions that fix both problems. This is not a minor edit. This is the Board telling the RO to start the medical opinion development over for thirteen separate conditions.

Now contrast all of that with the audiology examination. The Board found that examination adequate. Why? Because the examiner did the audiometric testing, recorded the threshold values, explained why those values did not meet § 3.385, and provided a rationale for the negative nexus opinion that rested on objective clinical data (the entrance and separation audiograms) and a specific alternative cause (post-service occupational noise exposure). The examiner did the work. The work was unfavorable. The veteran loses.

The scar examination, similarly, was found adequate because the examiner conducted an in-person physical examination, identified the scars that did exist (nose, right shoulder, right wrist), measured them in tenths of centimeters, and specifically reported the absence of scars on the trunk and left upper extremity. The examiner did the work. The work was unfavorable. The veteran loses.

Adequacy and outcome are independent variables. A thorough, well-reasoned, unfavorable examination is the worst kind of examination to receive, because it is also the hardest kind to attack on appeal.

If your case looks anything like this one, the next part is what matters most. Not the precedents. The specific lessons you can use.

Lesson #1: Read 38 C.F.R. § 3.385 Before You File the Hearing Loss Claim

If you are filing a hearing loss claim, pull up your most recent audiogram and check it against the § 3.385 thresholds yourself. The three gates are:

1. Any single frequency from 500 to 4000 Hz at 40 decibels or worse.
2. At least three frequencies from 500 to 4000 Hz at 26 decibels or worse.
3. Maryland CNC speech recognition under 94 percent in either ear.

If your audiogram does not show any of those three patterns, your hearing loss is not yet a VA-recognized disability, no matter what your civilian audiologist or VA primary care provider has written in your chart. Filing now will produce a denial under Brammer and § 3.385. Filing later, after a subsequent audiogram documents progression, is the better play.

The narrow exception is the chronic-disease presumptive pathway. If sensorineural hearing loss became manifest to a degree of 10 percent within one year of separation, the chronic-disease framework under § 3.309(a) applies. For most veterans more than a year out from separation, that exception is not available. The general rule controls.

Lesson #2: Conceded In-Service Noise Exposure Is Necessary, Not Sufficient

A lot of veterans assume that getting VA to admit in-service noise exposure is the hard part of a hearing loss claim. It is hard, and for combat MOS or flight MOS the concession often comes automatically based on the MOS itself. But the concession is one of three elements under Shedden. It does not carry the other two.

The Shedden structure means you can have your in-service exposure on paper and still lose, exactly the way this veteran did. The other two elements (current disability under § 3.385 and a positive nexus) have to be independently satisfied. Treat the in-service concession as a starting line, not a finish line.

Lesson #3: An Examiner's Alternative-Cause Rationale Is the Hardest Opinion to Attack

The VA audiologist here did not just say "no nexus." She said the hearing loss is more likely due to twenty years of post-service noise exposure. That kind of opinion, built on a specific alternative cause anchored to objective evidence (the entrance and separation audiograms showing normal hearing), is exceptionally durable on appeal.

If you receive an examination report with an alternative-cause rationale, the path forward is not to argue the examiner is wrong in general terms. The path is to produce evidence specifically rebutting the alternative cause. For this veteran, that could have meant detailed documentation of his civilian work history showing it was not high-noise. It could have meant a private audiologist's opinion explaining why the entrance and separation audiograms are not dispositive given the latency patterns of noise-induced hearing loss. It could have meant a Hensley-based argument about threshold shifts within the "normal" range.

Without rebuttal evidence on the alternative cause, the examiner's opinion stands. And under the standards for medical opinion weight set out in Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), and Bloom v. West, 12 Vet. App. 185 (1999), a thorough rationale grounded in clinical data carries significant probative value.

Lesson #4: A TERA Pathway Left Undeveloped Is a Remand Waiting to Happen

The second half of this decision is the more useful half for veterans with multi-condition files. Thirteen claims got remanded because the RO did not develop a comprehensive TERA memorandum and did not assemble the basic record (personnel records, treatment records) that would let an examiner write an adequate opinion.

If you have qualifying exposure service and you have not seen a TERA memorandum in your file, your file is in the same posture this veteran's file was in before the Board ordered the remand. The remand pattern is the diagnostic. You can either wait until the Board orders the development for you (years from now, after going up on appeal), or you can ask for the development now through your VSO or accredited representative.

The PACT Act framework expects TERA evaluations to happen as part of standard claim development for veterans with qualifying exposure profiles. Aviation MOS, deployed service, Persian Gulf service, burn pit exposure, and other qualifying categories should trigger TERA development automatically. When they don't, the absence is a procedural error you can flag.

Lesson #5: Service Personnel Records Are Not the Same as Service Treatment Records

This is a distinction veterans miss constantly. Service treatment records (STRs) are your military medical records. Service personnel records (SPRs) are your administrative file: orders, assignments, evaluations, deployment documentation, awards. Both can contain evidence relevant to a claim, but they are stored separately and have to be requested separately.

The Board in this case specifically remanded for identification and obtaining of service personnel records. For an aircrewman, personnel records can document flight hours, aircraft types, deployment locations, and unit-level exposure narratives. None of that shows up in STRs.

If you are filing a claim where assignment history, duty environment, or deployment-specific exposure matters, check your file for SPRs. If they are not there, request them. Do not assume that "VA has my records" means VA has both sets.

Lesson #6: An Adequate Exam Is Not the Same as a Favorable Exam

The Board explicitly found the January 2023 audiology examination and the January 2023 scars examination both "adequate and highly probative." Both examinations produced denials. That is not a contradiction. Adequacy is a procedural finding about whether the examination satisfied the standards for medical opinion weight: thoroughness, review of the claims file, clear rationale, objective clinical data.

A favorable examination is one that produces a finding helpful to the veteran's claim. The two concepts are independent. An adequate examination can be devastatingly unfavorable. An inadequate examination can have favorable language that the Board will discount on weight grounds.

When you are preparing for a C&P exam, the goal is not just to get an adequate exam. The goal is to provide the examiner with the specific information and documentation that supports a favorable result while still meeting all the adequacy criteria. This means bringing your own history written out, bringing documentation of relevant post-service exposure or its absence, and being prepared to describe symptoms in detail.

Everything above is what happened to one aircrewman across more than two decades of service and post-service medical history. Here is what you do this week if your situation looks similar.

What If This Was You

If you are filing for hearing loss and you want to avoid the structural denial this veteran received, here is the order of operations.

1. Get a current audiogram and check it against § 3.385 yourself. If you do not meet any of the three gates, hold the claim. Filing into a failed disability prong produces a denial that becomes a final decision and creates a reopen problem later.
2. If you do meet § 3.385, gather your enlistment and separation audiograms. Compare thresholds across the timeline. Document any shift, even within Hensley's "normal" range. Threshold shifts are the strongest in-service evidence for noise-induced hearing loss.
3. Document your post-service noise exposure history specifically. If a future examiner is going to assert an alternative cause based on post-service occupational noise, you want to be able to rebut that assertion with detail about your actual work environments.
4. Consider a private audiologist opinion. A private opinion that specifically addresses the latency pattern of noise-induced hearing loss and explains why a "normal" separation audiogram does not foreclose service nexus can be a force multiplier. Make sure the opinion addresses both the disability prong (§ 3.385 thresholds) and the nexus prong (causation).
5. Check your file for a TERA memorandum if you have qualifying exposure service. Aviation, deployed service, Persian Gulf, burn pits, Camp Lejeune, ionizing radiation. If you have one of these in your service profile and no TERA memo in your file, request one through your VSO.
6. Check your file for service personnel records, not just service treatment records. If only STRs are present, request the personnel file separately.
7. For every C&P exam, prepare specifically. Write your symptom history. Document your post-service exposure or lack of exposure. Be ready to describe functional impact in detail. Bring documentation.

What the Data Can't Tell Me

I have the Board's decision. I do not have the underlying audiogram values. The decision tells me his thresholds at 3000 and 4000 Hz existed but were below the § 3.385 cutoffs, and his Maryland CNC scores were 96 percent or better. I do not know how close he was to the thresholds. A veteran whose worst frequency was 25 decibels at one ear (one decibel short of the three-frequency gate) is in a very different position from one whose worst frequency was 15 decibels. The data I have does not distinguish those two situations.

I also do not know what the remanded claims will produce. As of the April 2025 decision, the exams hadn't happened yet, the TERA memo hadn't been developed, and the personnel records and treatment records hadn't been obtained. Any of the thirteen remanded claims could come back granted or denied. The remand opens the door. It does not predict what walks through it.

Bottom Line

The central lesson of BVA A25037997 is that hearing loss claims fail at a structural level when the audiometric thresholds in 38 C.F.R. § 3.385 are not met, regardless of how strong the in-service noise exposure evidence is. Conceded exposure, a current sensorineural diagnosis, and a thorough VA examination are not enough on their own. The regulation imposes a numerical gate that the rest of the claim has to clear, and if the audiogram does not show the required pattern, the disability prong of the Shedden test fails and Brammer ends the analysis.

The second lesson, sitting in the thirteen-claim remand, is that VA's development of toxic exposure pathways for veterans with qualifying service is far less consistent than it should be. When the Board has to order the RO to obtain personnel records, develop a comprehensive TERA memorandum, gather treatment records, and rewrite thirteen medical opinions, that is a process failure across a substantial portion of one veteran's file. If your service profile includes qualifying exposure and your file shows none of that development, you are looking at the same pattern. The remand is what eventually fixes it. Asking for the development now, through a VSO or accredited representative, is faster than waiting for the Board to order it years later.

Methodology and Limitations

• Data source: Claim Raven's analysis of BVA citation A25037997, a single Board of Veterans' Appeals decision dated April 24, 2025, written by Veterans Law Judge S. B. Mays.
• Verbatim quotes: All blockquoted passages come from the decision text. I have not paraphrased the Board's reasoning when quoting.
• Aggregate context: This is a single-case breakdown. Where I reference broader patterns, those patterns come from Claim Raven's larger dataset of 101,518 condition records drawn from 49,876 Board decisions. Individual case outcomes vary substantially and cannot be predicted from aggregate data alone.

Disclaimer

I'm not accredited by VA, not a lawyer, not a VSO. This is data analysis, not claim advice. These are patterns from cases that made it to the BVA, they don't predict individual outcomes. If you need help with your claim, work with an accredited representative.

Where to go next

• Related article: BVA Case Breakdown: When a C&P Exam Is Inadequate, the Board Sends It Back
• Relevant tool: Evidence Checklists
• More analysis: /blog
• Disclaimer: Claim Raven is data analysis, not legal, medical, or VA-accredited advice.

-Landon Founder, Claim Raven | U.S. Army Veteran