Citation Nr: 0813914	
Decision Date: 04/28/08    Archive Date: 05/08/08

DOCKET NO.  05-38 974A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, 
the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Puerto Rico Public Advocate 
for Veterans Affairs


ATTORNEY FOR THE BOARD

Biswajit Chatterjee, Associate Counsel




INTRODUCTION

The veteran had active military service from February 1951 to 
November 1953.

This appeal to the Board of Veterans Appeals (Board) is from 
a January 2005 rating decision of the Department of Veterans 
Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.  

In his February 2005 notice of disagreement (NOD), the 
veteran requested a hearing at the RO.  Although the RO 
scheduled him for a hearing in August 2005, he failed to 
report for it.  He has not explained his absence or requested 
to reschedule the hearing.  Therefore, his hearing request is 
considered withdrawn.  See 38 C.F.R. § 20.704(d) (2007).


FINDING OF FACT

There is no indication the veteran had bilateral hearing loss 
while he was in the military or sensorineural hearing loss 
within one year after his discharge or even for many ensuing 
years.  There also is no competent or credible evidence 
otherwise linking his current bilateral hearing loss to his 
military service, including to any acoustic trauma he may 
have sustained in service.


CONCLUSION OF LAW

The veteran's bilateral hearing loss was not incurred in or 
aggravated by his military service and may not be presumed to 
have been incurred in service.  38 U.S.C.A. §§ 1101, 1110, 
1112, 1113, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 
3.303, 3.304, 3.307, 3.309, 3.385 (2007).





REASONS AND BASES FOR FINDING AND CONCLUSION

The Duties to Notify and Assist

Review of the claims file reveals compliance with the 
Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. § 5100 et 
seq (West 2002 and Supp. 2007).  See also 38 C.F.R. §§ 3.102, 
3.156(a), 3.159, 3.326(a) (2007).  The duty to notify was 
accomplished by way of a VCAA letter from the RO to the 
veteran dated in April 2004.  That letter effectively 
satisfied the notification requirements of the VCAA 
consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 
3.159(b) by: 
(1) informing him of the information and evidence not of 
record that was necessary to substantiate his claim for 
service connection; 
(2) informing him of the information and evidence the VA 
would seek to provide; 
(3) informing him of the information and evidence he was 
expected to provide; and 
(4) requesting that he provide any evidence in his possession 
pertaining to his claim.  See also Pelegrini v. Principi, 18 
Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 
16 Vet. App. 183, 187 (2002).  

The Board also sees the RO correctly issued that April 2004 
VCAA notice letter prior to initially adjudicating the claim 
in January 2005, the preferred sequence.  Mayfield v. 
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini II, 18 
Vet. App. at 120.  Thus, there is no timing error in the 
provision of that VCAA notice.  

It equally deserves mentioning that a more recent August 2006 
letter from the RO further advised the veteran of the 
downstream disability rating and effective date elements of 
his claim.  Dingess v. Nicholson, 19 Vet. App. 473, 486 
(2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 
(2007).  See, too, Dunlap v. Nicholson, 21 Vet. App. 112 
(2007).  So this additional portion of his VCAA notice was 
provided after the initial adjudication of his claim.  
However, the Federal Circuit Court and Veterans Claims Court 
have clarified that VA can provide any additional necessary 
notice subsequent to the initial RO adjudication, and then go 
back and readjudicate the claim such that the essential 
fairness of the adjudication - as a whole, is unaffected 
because the appellant is still provided a meaningful 
opportunity to participate effectively in the adjudication of 
the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 
(Fed. Cir. 2007) (Mayfield IV) (where the Federal Circuit 
Court held that a statement of the case (SOC) or supplemental 
SOC (SSOC) can constitute a "readjudication decision" that 
complies with all applicable due process and notification 
requirements if adequate VCAA notice is provided prior to the 
SOC or SSOC.  As a matter of law, the provision of adequate 
VCAA notice prior to a readjudication "cures" any timing 
problem associated with inadequate notice or the lack of 
notice prior to an initial adjudication.  See also Prickett 
v. Nicholson, 20 Vet. App. 370, 376 (2006).

Here, although the RO provided additional VCAA notice in 
August 2006, it did not go back and readjudicate the claim by 
way of a subsequent SSOC.  So, in essence, based on the above 
caselaw, the timing defect in the VCAA notice was not 
rectified because the RO did not go back and reconsider the 
claim after providing the additional VCAA notice.  But 
consider as well that the Court also recently held the 
failure of the claimant to submit additional evidence 
following proper notification may constitute a waiver of 
readjudication or render the error harmless.  See, e.g., 
Medrano v. Nicholson, 21 Vet. App. 165, 173 (2007).  In fact, 
here, the veteran failed to provide any additional evidence 
after the August 2006 notice.  There were only translations, 
from Spanish to English, of previously submitted evidence.

Additionally in this regard, in Sanders v. Nicholson, 487 
F.3d 881 (Fed. Cir. 2007), the Federal Circuit Court held 
that any error by VA in providing the notice required by 38 
U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1), concerning any 
element of a claim, is presumed prejudicial.  Further, VA, 
not the veteran, has the burden of rebutting this presumption 
by showing the error was not prejudicial to the veteran in 
that it does not affect the essential fairness of the 
adjudication.  To do this, VA must demonstrate:  (1) that any 
defect was cured by actual knowledge on the part of the 
claimant (see Vazquez-Flores v. Peake, 22 Vet. App. 37 
(2008)) ("Actual knowledge is established by statements or 
actions by the claimant or the claimant's representative that 
demonstrate an awareness of what was necessary to 
substantiate his or her claim"); (2) that a reasonable person 
could be expected to understand from the notice what was 
needed; or (3) that a benefit could not have been awarded as 
a matter of law.  Additionally, consideration should be given 
to "whether the post-adjudicatory notice and opportunity to 
develop the case that is provided during the extensive 
administrative appellate proceedings leading to the final 
Board decision and final Agency adjudication of the claim ... 
served to render any pre-adjudicatory section 5103(a) notice 
error non-prejudicial."  Vazquez-Flores v. Peake, 22 Vet. 
App. 37 (2008).  

Here, the Board finds that the presumption of prejudice due 
to the timing error has been rebutted:  (1) based on the 
communications sent to the veteran over the course of this 
appeal, he clearly has actual knowledge of the evidence he is 
required to submit; and (2) based on his contentions and the 
communications provided to him by VA over the course of this 
appeal, he reasonably understands from the notices provided 
what was needed.

Specifically, the veteran submitted a claim for service 
connection  for hearing loss in October 2003, an 
authorization and consent form for private medical records 
in March 2004, a notice of disagreement (NOD) in February 
2005, and a substantive appeal (VA Form 9) in December 2005, 
all showing actual knowledge of the evidence required to 
substantiate his claim.  Furthermore, per his reported 
history during his VA audiology examination in May 2004 and 
during a private audiology examination in November 2005, he 
has shown knowledge that evidence of acoustic trauma and 
noise exposure during service can assist in establishing his 
claim for service connection for bilateral hearing loss.  In 
addition, all VCAA notices provided by VA are clear and 
pertinent to his contentions, such that a reasonable person 
could understand what was required to prove the claim.  
Furthermore, to the extent it could be argued that there was 
a timing error, overall, he was afforded a meaningful 
opportunity to participate in the adjudication of his 
service-connection claim such that the intended purpose of 
the VCAA notice was not frustrated.  Overton v. Nicholson, 20 
Vet. App. 427, 435 (2006).  There is no allegation or 
evidence that the timing error affected the 
essential fairness of the adjudication of his claim.



As for the duty to assist, the RO obtained the veteran's 
service medical records (SMRs), VA treatment records, private 
medical records, and arranged for him to have a VA audiology 
examination in May 2004 - albeit without also requesting a 
medical nexus opinion concerning the cause of his bilateral 
hearing loss.

Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in a 
disability compensation (service connection) claim, VA must 
provide a VA 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 the VA to make a decision on the claim.  
See also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 
3.159(c)(4)(i); Charles v. Principi, 16 Vet. App. 370, 374-75 
(2002).  Simply stated, the standards of McLendon are not met 
in this case.

There is sufficient evidence in the veteran's claims file to 
decide his appeal, such that another VA examination for a 
nexus opinion would serve no constructive purpose.  See 
Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. 
Brown, 6 Vet. App. 426, 430 (1994).  There is no indication 
he had bilateral hearing loss while he was in the military or 
sensorineural hearing loss within one year after his 
discharge or even for many ensuing years.  There also is no 
competent or credible evidence otherwise suggesting a link 
between his current bilateral hearing loss and his military 
service, including to any acoustic trauma he may have 
sustained in service.  So there is no basis for obtaining a 
medical nexus opinion.  There is more than enough competent 
medical evidence in the record to decide his claim on appeal.  
Therefore, the Board is satisfied that the duty to assist has 
been met.  38 U.S.C.A. § 5103A.  



Governing Statutes and Regulations for Service Connection

Service connection is granted if it is shown the veteran has 
disability resulting from an injury sustained or a disease 
contracted in the line of duty, or for aggravation during 
service of a pre-existing condition beyond its natural 
progression.  38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 
3.306.

Some diseases are chronic, per se, such as organic diseases 
of the nervous system (including sensorineural hearing loss), 
and therefore will be presumed to have been incurred in 
service, although not otherwise established as such, if 
manifested to a degree of ten percent or more within one year 
after service.  Even this presumption, however, is rebuttable 
by probative evidence to the contrary.  38 U.S.C.A. §§ 1101, 
1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

So service connection may be established either by showing 
direct service incurrence or aggravation or by using 
applicable presumptions, if available.  Combee v. Brown, 34 
F.3d 1039, 1043 (Fed. Cir. 1994).

To establish service connection, there must be:  (1) a 
medical diagnosis of a current disability; (2) medical or, in 
certain cases, lay evidence of in-service occurrence or 
aggravation of a disease or injury; and (3) medical evidence 
of a nexus between an in-service injury or disease and the 
current disability.  Hickson v. West, 12 Vet. App. 247, 252 
(1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), 
aff'd 78 F.3d 604 (Fed. Cir. 1996). 

Generally, service connection requires evidence of a current 
disability with a relationship or connection to an injury or 
disease or some other manifestation of the disability during 
service.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 
2000).  In the absence of proof of a current disability, 
there can be no valid claim.  Brammer v. Derwinski, 
3 Vet. App. 223, 225 (1992) (indicating service connection 
presupposes a current diagnosis of the condition claimed).

Disorders diagnosed after discharge may still be service 
connected if all the evidence, including pertinent service 
records, establishes the disorder was incurred in service.  
38 C.F.R. § 3.303(d) (2007); Combee v. Brown, 
34 F.3d 1039, 1043 (Fed. Cir. 1994).

A disorder also may be service connected if the evidence of 
record reveals the veteran currently has a disorder that was 
chronic in service or, if not chronic, that was seen in 
service with continuity of symptomatology demonstrated 
thereafter.  38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. 
App. 488, 494-97 (1997).  For the showing of chronic disease 
in service, (or within a presumptive period per § 3.307), 
there is required a combination of manifestations sufficient 
to identify the disease entity, and sufficient observation to 
establish chronicity at the time, as distinguished from 
merely isolated findings or a diagnosis including the word 
"chronic."  
38 C.F.R. § 3.303(b).  Subsequent manifestations of the same 
chronic disease at any later date, however remote, are 
service connected, unless clearly attributable to 
intercurrent causes.  Id. 

A layperson is generally not capable of opining on matters 
requiring medical knowledge.  Routen v. Brown, 10 Vet. 
App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 
1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998).  
Where the determinative issue involves medical causation or a 
medical diagnosis, there must be competent medical evidence 
to the effect that the claim is plausible; lay assertions of 
medical status generally do not constitute competent medical 
evidence.  Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); 
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  However, 
lay evidence can be competent and sufficient to establish a 
diagnosis of a condition when (1) a layperson is competent to 
identify the medical condition, (e.g., a broken leg), (2) the 
layperson is reporting a contemporaneous medical diagnosis, 
or (3) lay testimony describing symptoms at the time supports 
a later diagnosis by a medical professional.  
Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).



When a condition may be diagnosed by its unique and readily 
identifiable features, the presence of the disorder is not a 
determination "medical in nature" and is capable of lay 
observation.  In such cases, the Board is within its province 
to weigh that testimony and to make a credibility 
determination as to whether the evidence supports a finding 
of service incurrence and continuity of symptomatology 
sufficient to establish service connection.  See Barr v. 
Nicholson, 21 Vet. App. 303 (2007).

In essence, lay testimony is competent when it regards the 
readily observable features or symptoms of injury or illness 
and "may provide sufficient support for a claim of service 
connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  
See also 38 C.F.R. § 3.159(a)(2).  A determination as to 
whether medical evidence is needed to demonstrate that a 
veteran presently has the same condition he or she had in 
service or during a presumption period, or whether lay 
evidence will suffice, depends on the nature of the veteran's 
present condition (e.g., whether the veteran's present 
condition is of a type that requires medical expertise to 
identify it as the same condition as that in service or 
during a presumption period, or whether it can be so 
identified by lay observation).  Savage, 10 Vet. App. at 494-
97.  

In determining whether service connection is warranted for a 
disability, VA is responsible for determining whether the 
evidence supports the claim or is in relative equipoise 
(about evenly balanced for and against the claim), with the 
veteran prevailing in either event, or whether instead the 
preponderance of the evidence is against the claim, in which 
case the claim is denied.  38 U.S.C.A. § 5107; 
38 CFR § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The threshold for normal hearing is from zero to 20 decibels, 
and higher threshold levels indicate some degree of hearing 
loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  
According to VA standards, impaired hearing will be 
considered a disability when the auditory threshold in any of 
the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 
decibels or greater; or when the auditory 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 (2007).

For service connection, it is not required that a hearing 
loss disability by the standards of 38 C.F.R. § 3.385 be 
demonstrated during service, although a hearing loss 
disability by the standards of 38 C.F.R. § 3.385 must be 
currently present, and service connection is possible if such 
current hearing loss disability can be adequately linked to 
service.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).

Service connection for hearing loss may be granted where 
there is credible evidence of acoustic trauma due to 
significant noise exposure in service, post-service 
audiometric findings meeting regulatory requirements for 
hearing loss disability for VA purposes, and a medically 
sound basis upon which to attribute the post-service findings 
to the injury in service, as opposed to intercurrent causes.  
Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  

"In the case of any veteran who engaged in combat...the 
Secretary [of VA] shall accept as sufficient proof of 
service-connection of any disease or injury alleged to have 
been incurred in or aggravated by such service satisfactory 
lay or other evidence of service incurrence or aggravation of 
such injury or disease...notwithstanding the fact that there 
are no official record of such...in such service."  
38 U.S.C.A. § 1154(b).

"Satisfactory lay or other evidence that an injury or 
disease was incurred or aggravated in combat will be accepted 
as sufficient proof of service connection if the evidence is 
consistent with the circumstances, conditions or hardship of 
such service even though there is no official record of such 
incurrence or aggravation."  38 C.F.R. § 3.304(d).

The Federal Circuit Court has held that the relaxed standard 
for combat veterans, to prove service connection for an 
injury sustained during such service, does not mean there is 
a relaxed standard to prove that he engaged in combat.  
See Stone v. Nicholson, 480  F.3d 1111 (Fed. Cir. 2007).



Combat service also, even if established, does not obviate 
the need for the veteran to have medical nexus evidence 
linking his currently claimed disability to his military 
service.  See Russo v. Brown, 9 Vet. App. 46 (1996).  Cf. 
Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996); Arms 
v. West, 12 Vet. App. 188, 194-95 (1999).

Analysis of Service Connection Claim for Bilateral Hearing 
Loss

The veteran's bilateral hearing loss disorder was not 
incurred in or aggravated by his military service and may not 
be presumed to have been incurred in service.  38 U.S.C.A. §§ 
1101, 1110, 1111, 1112, 1113,1153, 5107; 38 C.F.R. §§ 3.303, 
3.304, 3.306, 3.307, 3.309, 3.385 (2007).  Most fatal to his 
claim is the fact that he did not have complaints or seek 
treatment for problems with his hearing either during his 
service in the Korean Conflict or even for nearly three 
decades afterwards.  He also has failed to otherwise 
establish a correlation between his current hearing loss 
disability and his claimed acoustic trauma during service.  
See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A 
determination of service connection requires a finding of the 
existence of a current disability and a determination of a 
relationship between that disability and an injury or disease 
incurred in service.").  See, too, Maggitt v. West, 202 F.3d 
1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 
1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 
(2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 
1998).

In his October 2003 claim, February 2005 notice of 
disagreement (NOD), and December 2005 substantive appeal (VA 
Form 9), the veteran asserted that he sustained acoustic 
trauma while in combat during the Korean Conflict, assigned 
to a field artillery unit as a loader and gunner in the 
cannon crew.  He further asserted that he was subjected to 
"intense" noise from "day and night bombardments."



As mentioned, the first and perhaps most fundamental 
requirement for any service-connection claim is the existence 
of a current disability.  Boyer, 210 F.3d at 1353;  Brammer, 
3 Vet. App. at 225.  A private audiologist that examined the 
veteran in November 2005 diagnosed mild to severe bilateral 
sensorineural hearing loss.  This was confirmed by a May 2004 
VA audiology examination, revealing the exact pure tone 
thresholds in accordance with VA regulations.  The audiogram 
showed pure tone thresholds in the right ear at frequencies 
of 500, 1000, 2000, 3000, and 4000 Hertz of 30, 50, 65, 90, 
and 105 decibels, respectively.  Corresponding findings in 
the left ear were 25, 55, 55, 80, and 90 decibels.  This 
meets the definition of a current bilateral hearing loss 
disability under VA guidelines, per 38 C.F.R. § 3.385.  See 
also Hensley.

But as for evidence of this disability during service, a 
review of the veteran's service medical records (SMRs) shows 
no mention of any complaint, treatment, or diagnosis of 
bilateral hearing loss in service.  38 C.F.R. § 3.303(b).  
And his November 1953 separation examination was equally 
unremarkable, also not noting any hearing loss in either ear.  
Indeed, as mentioned, there was no objective indication of 
hearing loss for even several more years, long after his 
service had ended.  But the mere fact that he did not have 
indications of hearing loss when separating from service, or 
for several ensuing years, is not altogether dispositive of 
his claim.  The laws and regulations do not require in-
service complaints of or treatment for hearing loss in order 
to establish entitlement to service connection.  Ledford v. 
Derwinski, 3 Vet. App. 87, 89 (1992).  Rather, it is only 
required that the veteran currently have sufficient hearing 
loss to meet the threshold minimum requirements of 
38 C.F.R. § 3.385 to be considered an actual disability by VA 
standards (which, as mentioned, he does), and that he have 
competent evidence etiologically linking his current hearing 
loss to his military service, unfortunately which he does 
not.  

The veteran's assertions of suffering intense noise exposure 
while in combat during the Korean Conflict may provide 
satisfactory lay evidence of service incurrence of hearing 
loss, even though there is no official record of such injury 
in service.  See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  
His claim is supported by his two bronze service stars, which 
are awarded for service in a combat zone, corroborating his 
statement that he "was subject to day and night 
bombardments," with "intense" noise.  See Stone; see also 
his claim dated in October 2003.  His assertion of suffering 
intense noise exposure to both ears during service is also 
consistent with his military occupational specialty (MOS) as 
a "loader and gunner of a 75mm cannon."  See his claim 
application received in October 2003, NOD dated in February 
2005, and his DD Form 214.  This is credible evidence of 
potential acoustic trauma in a noisy environment.  
Hensley, 5 Vet. App. at159.

But even acknowledging there is proof of the veteran's 
claimed disability, and even proof he engaged in combat 
during service, there still is no competent medical evidence 
of a link between in-service injury or disease and his 
current disability.  Hickson v. West, 12 Vet. App. 247, 252 
(1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), 
aff'd 78 F.3d 604 (Fed. Cir. 1996).  Although review of the 
evidence reveals what may be arguably characterized as 
acoustic trauma in service, there is no competent indication 
that it can be linked to his current hearing loss disability.  
Specifically, a private audiologist noted the veteran's 
reported positive history of noise exposure during service in 
concluding that "significant sensorineural hearing loss that 
is most likely related to [the veteran's] history of noise 
exposure of heavy artillery while in military service."  It 
does not appear, however, this private audiologist reviewed 
the veteran's claims file, undercutting the probative value 
of the opinion because it did not have the proper factual 
foundation.  See, e.g., Elkins v. Brown, 5 Vet. App. 474, 478 
(1993); Owens v. Brown, 7 Vet. App. 429 (1995); and 
Swann v. Brown, 5 Vet. App. 229, 233 (1993).  Indeed, it 
appears the only basis for this nexus opinion is the 
veteran's self-reported history of noise exposure in service 
and "hearing loss and tinnitus for many years."  Although 
his noise exposure in service is conceded, given that he 
engaged in combat during the Korean Conflict, he has not 
established continuity of symptomatology since his discharge 
from service to establish that he has experienced hearing 
loss and tinnitus for the alleged "many years."

In this regard, medical history provided by a veteran and 
recorded by an examiner without additional enhancement or 
analysis is not competent medical evidence.  LeShore v. 
Brown, 8 Vet. App. 406, 409 (1995).  However, the Court has 
held that VA cannot reject a medical opinion simply because 
it is based on a history supplied by the veteran and that the 
critical question is whether that history was accurate 
and credible.  See Kowalski v. Nicholson, 19 Vet. App. 171, 
179 (2005) and Coburn v. Nicholson, 19 Vet. App. 427, 432 
(2006) (reliance on a veteran's statement renders a medical 
report incredible only if the Board rejects the statements of 
the veteran).  Here, though, importantly, the veteran's 
assertion of hearing loss "for many years" is misleading, 
in that it indicates diagnosis or treatment for hearing loss 
that can reasonably be linked to documented treatments or 
diagnoses of hearing loss either in service or soon after.  
Therefore, the Board does not find this nexus opinion to be 
competent and credible in that the record evidences no 
complaint, diagnosis, or treatment of bilateral hearing loss 
either in service or until some three decades (30 years) 
after service, in June 1983.  The Board acknowledges there 
may have been acoustic trauma, but the absence of any 
complaint or treatment for a hearing loss disorder for 30 
years is also worth bearing in mind.  See Maxon v. West, 12 
Vet. App. 453, 459 (1999), affirmed sub nom. Maxon v. Gober, 
230 F.3d 1330, 1333 (Fed. Cir. 2000) (indicating it is 
appropriate to consider the veteran's entire medical history, 
including a lengthy period of absence of relevant 
complaints.)

Further, there is also no alternative basis for a nexus in 
the form of evidence of a chronic disorder in service or any 
continuity of symptomatology after service.  See 38 U.S.C.A. 
§ 1112; 38 C.F.R. § 3.303(b); 3.307; 3.309; Savage, 10 Vet. 
App. at 494-497.  Again, there is no history of complaint, 
treatment, or diagnosis of the veteran's current hearing loss 
disability either in service or for many years after.  
Overall, the evidence of record does not support his claim.  



Accordingly, the Board finds that the preponderance of the 
evidence is against service connection for a bilateral 
hearing loss disorder, so there is no reasonable doubt to 
resolve in the veteran's favor.  38 U.S.C.A. § 5107(b); 
38 C.F.R. § 3.102.


ORDER

Service connection for bilateral hearing loss is denied.




____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs