Citation Nr: 1304971	
Decision Date: 02/11/13    Archive Date: 02/21/13

DOCKET NO.  08-00 728	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for left ear hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

H. Bunker, Associate Counsel


INTRODUCTION

The Veteran had active military service in the Navy from July 1951 to August 1954, in the Marine Corps from October 1954 to October 1957, and in the Air Force from October 1957 to July 1977.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a May 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO).  In that decision, the RO granted service connection for right ear hearing loss and assigned an initial 0 percent (i.e., noncompensable) disability rating.  However, after also reopening the claim for left ear hearing loss on the basis of new and material evidence (since service connection also had been previously considered and denied for this ear, as well, a decision that was not appealed), the RO proceeded to again deny this claim regarding this ear on its underlying merits. 

The Veteran appealed both the noncompensable rating assigned for his right ear hearing loss and the denial of service connection for left ear hearing loss.  However, during his July 2009 hearing before the undersigned Veterans Law Judge of the Board, the Veteran withdrew his claim for a higher initial rating for his right ear hearing loss, so that claim is no longer at issue.  See 38 C.F.R. § 20.204 (2012).

In an April 2010 decision, the Board agreed with the RO that there was new and material evidence and therefore, like the RO, granted his petition to reopen his claim for service connection for left ear hearing loss.  See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (when there is a prior final and binding decision denying a claim, the Board does not have jurisdiction to review the claim on a de novo basis in the absence of a finding that new and material evidence has been submitted); McGinnis v. Brown, 4 Vet. App. 239 (1993) (Board reopening is unlawful when new and material evidence has not been submitted).  The Board had to make this threshold preliminary determination before proceeding further, regardless of what the RO had determined, because this initial determination affected the Board's jurisdiction to consider the claim on its underlying merits.  See Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); and VAOPGCPREC 05-92 (March 4, 1992).
But rather than immediately readjudicating this claim on its underlying merits, the Board remanded this claim to RO via the Appeal Management Center (AMC) in Washington, DC, for further development and consideration.  This additional development included having the Veteran undergo a VA compensation examination for additional medical comment concerning the etiology of his left ear hearing loss, particularly regarding its alleged relationship with his military service.

He had this VA examination for this opinion in August 2010 and, after the AMC considered it along with the other evidence in the file and continued to deny the claim, the file was returned to the Board for further appellate consideration of the claim.

The Board advanced the appeal of this claim on the docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

In a December 2010 decision, however, the Board denied this claim, and the Veteran appealed to the U. S. Court of Appeals for Veterans Claims (Court/CAVC).  In a July 2011 Order, the Court granted a Joint Motion to vacate the Board's decision denying this claim and to remand this claim to the Board for further proceedings and compliance with directives specified in the Joint Motion.

Upon receiving the file back from the Court, the Board, in turn, again remanded this claim to the RO via the AMC in November 2011.  This further development of the claim included obtaining supplemental comment (an addendum opinion) from the August 2010 VA compensation examiner, again as concerning any potential relationship between the Veteran's left ear hearing loss and his military service.  He resultantly had another VA compensation examination in February 2012 for this additional medical comment.  But after considering it, the AMC continued to deny the claim in a July 2012 supplemental statement of the case (SSOC), so again returned the file to the Board for further appellate consideration.


Because, however, the Board determined even this additional medical comment was insufficient to decide the claim given the points noted in the Joint Motion, the Board elected to obtain even more medical comment concerning this case in September 2012 by requesting an expert medical opinion from an otolaryngologist (ear, nose & throat (ENT) specialist) with the Veterans Health Administration (VHA).  The designee, who is an Associate Professor at the Medical College of Wisconsin and works in the Department of Otolaryngology at the VA Medical Center (VAMC) in Milwaukee, Wisconsin, submitted his response opinion in October 2012.  After receiving this VHA opinion, the Board sent the Veteran and his representative a letter and copy of the opinion in November 2012 giving them 60 days to submit additional evidence and argument in response.  The Veteran indicated when responding later in November 2012 that he had no other evidence or argument to submit at the time of his response, but that he wanted the Board to continue holding his case in abeyance for the remainder of the 60 days he had to respond as he may have additional materials to submit.  He did not later submit any additional evidence before expiration of the 60-day grace period, however, although his representative submitted additional argument in November 2012.  The Board therefore is proceeding with its readjudication of this claim.


FINDINGS OF FACT

1.  On at least three occasions during his active military service, specifically, in July 1970, November 1975, and March 1977, the Veteran had hearing loss in his left ear in the 6000 Hertz frequency.  At no time during his service, however, was there ever indication of hearing loss in this ear in any of the lower frequencies of 500, 1000, 2000, 3000 and 4000 Hertz, which are the specific frequencies VA considers when determining whether there is a ratable hearing loss disability.

2.  He is now essentially deaf in his left ear, with only relatively slight-to-moderate hearing loss in his right ear.

3.  Service connection for the hearing loss in the right ear has been granted, but every examiner that has been asked to determine whether the current hearing loss (deafness) in the left ear also is related or attributable to the Veteran's military service, or incepted during his service, ultimately has refuted this notion, and this includes the VHA medical expert who most recently commented on this in September 2012.

4.  In disassociating the current left ear hearing loss (deafness) from the Veteran's military service, including noise exposure, these examiners among other factors have cited the asymmetry of the hearing loss in the Veteran's left ear versus that in his right ear.  They also have confirmed the current left ear hearing loss (deafness) is unrelated to the hearing loss shown during his service in the 6,000 Hertz frequency and as well unrelated to the left ear conditions noted in service, i.e., otitis externa or wax build up.

5.  There resultantly is not the required etiological linkage between the present-day hearing loss in the left ear (deafness) and any disease, injury or event of the Veteran's active military service, and since hearing loss is not the type of "simple" condition that is readily amenable to probative lay comment regarding its diagnosis and etiology, this dispositive issue of causation is ultimately a medical, not lay, determination.  Thus, the preponderance of the evidence is against this claim.


CONCLUSION OF LAW

It is not shown the Veteran's current left ear hearing loss (deafness) was incurred in or aggravated by his active military service or that it may be presumed to have been.  38 U.S.C.A §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has reviewed all of the evidence in the Veteran's claims folder.  Although the Board has an obligation to review the entire record, the Board does not have to discuss each and every piece of evidence reviewed, certainly not in exhaustive detail.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The Veteran therefore must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to him).

It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, this doubt will be resolved in favor of the claimant.  By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists that does not satisfactorily prove or disprove the claim.  Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102).

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).

Upon receipt of a complete or substantially complete application for benefits, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that he is expected to provide.  


These notice requirements apply to all elements of a service-connection claim:  1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability award.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).

Ideally, VCAA notice should be provided prior to initially adjudicating the claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Supreme Court has made clear that VCAA notice errors, even if shown to have occurred, are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of not only establishing there is a VCAA notice error, such as in timing or content, but, moreover, above and beyond that, showing how the error is unduly prejudicial, meaning outcome determinative of his claim.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  

These notice obligations were met in this case by way of a letter sent to the Veteran in January 2007.  The letter advised him of the type of information and evidence necessary to substantiate his claim and of his and VA's respective responsibilities in obtaining this supporting evidence.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b).  The letter also was sent prior to initially adjudicating his claim in the May 2007 decision precipitating this appeal, so according to Pelegrini in the preferred sequence, and advised him of how a "downstream" disability rating and effective date are determined in accordance with Dingess.  He therefore has received all required notice concerning this claim.

As for the duty to assist him with this claim, his service treatment records (STRs) and post-service VA treatment records are in the file.  Also of record is an audiogram and opinion of a private doctor.  The Veteran has not indicated there is any additional evidence needing to be obtained.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim.  The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination and opinion are required when:  (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred that would support incurrence or aggravation, (3) an indication the current disability may be related to the event, injury or disease in service, but (4) insufficient evidence to decide the case.  See also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).

The Veteran has had several VA compensation examinations concerning this claim, initially in May 2007 but also more recently in August 2010 and February 2012.  That August 2010 examination was to try and obtain necessary information that was not provided during the initial May 2007 examination, and that most recent February 2012 examination was to try and obtain necessary information that was not provided during even that August 2010 examination.  So each of those examinations was to try and rectify problems or obtain additional or clarifying information that was not provided during the immediately preceding examination.  But even after there remained insufficient responses by those VA compensation examiners, the Board then consequently elected to obtain still additional comment from a medical expert (otolaryngologist) with VHA, who responded in October 2012.  The Board therefore now has the level of information needed to address this claim that the Court, in granting the Joint Motion for Remand (JMR), found the Board did not have when previously adjudicating this claim.  

Hence, by obtaining this VHA opinion as a supplement to the others previously obtained on remand, there has been compliance with all of the Board's prior remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A remand confers upon the Appellant the right to compliance with the remand directives, and the Board itself commits error, as a matter of law, in failing to ensure compliance).  But see, too, Dyment v. West, 13 Vet. App. 141, 146-47 (1999); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); and Chest v. Peake, 283 Fed. App. 814 (Fed. Cir. 2008) (discussing situations when it is permissible to in effect have "substantial", even if not necessarily "exact", "absolute" or "total" compliance with remand orders).  These medical opinions are all considered competent as they were provided by doctors or those possessing the necessary medical competence, education, training, qualifications or experience to, according to 38 C.F.R. § 3.159(a)(1), offer medical diagnoses, statements or opinions.  See Cox v. Nicholson, 20 Vet. App. 563 (2007).  See also Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009) (indicating that, where this is not called into question, VA need not affirmatively establish an examiner's competency).

As indicated, the VHA expert medical opinion that was most recently requested and obtained was to address important matters the prior examiners had failed or neglected to.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided).  These opinions, especially considered collectively, are responsive to the determinative issue of causation.

The Veteran, then, has received all essential notice and assistance with his claim, has had a meaningful opportunity to participate effectively in the development of his claim, and is not prejudiced by any technical notice or assistance deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004).

It therefore is difficult to discern what additional guidance VA could have provided him regarding what further evidence he should submit to substantiate his claim.  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims.").  See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran).

Service Connection

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

Stated somewhat differently, to establish entitlement to direct service connection for the claimed disability, there must be:  (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).

Organic diseases of the nervous system, including sensorineural hearing loss, will be presumed to have been incurred in service if manifested to a compensable degree (generally meaning to at least 10-percent disabling) within one year after service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).

So service connection is 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).

Diseases diagnosed after discharge may be service connected if the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

If, however, chronicity (permanency) of disease or injury is not shown, or this is legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim.  38 C.F.R. § 3.303(b).  The second and third elements of Shedden may be established under § 3.303(b) by showing continuity of symptomatology.  Establishing continuity of symptomatology under § 3.303(b) is an alternative method of establishing chronicity of disease or injury in service to in turn link the currently claimed disability to service.  See also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be shown by demonstrating:  (1) the condition was observed ("noted") during service, (2) symptoms of that condition continued after service, and (3) the current condition is related to those continuing symptoms.  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).

To establish a showing of chronic disease in service, or within a presumptive period per § 3.307, 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," is required.  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.

Notation of a condition during service does not require medical evidence where "the condition is of a type as to which a lay person's observation is competent."  See Savage v. Gober, 10 Vet. App. 488, 494-97 (1997).  However, although prong (3) in the three-part test above for continuity of symptomatology does not necessarily require medical nexus evidence, "because it would not necessarily follow that there is a relationship between any present disability and the continuity of symptomatology demonstrated, medical evidence is required to demonstrate such a relationship unless such a relationship is one as to which a lay person's observation is competent."  Id (citations omitted).

A layperson is generally incapable 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).  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, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 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).  The 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 presumptive 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. 488, 494-97.  When, for example, 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 make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr, 21 Vet. App. at 310.


So medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  As held in Davidson, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  See also Jandreau, 492 F.3d at 1377 (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").  See, too, Kahana v. Shinseki, 24 Vet. App. 428 (2011) (When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.).

 "Symptoms, not treatment [for the symptoms], are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Once evidence is determined to be competent, however, the Board must additionally determine whether the evidence also is credible, as only then does it ultimately have probative value.  See Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).

The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence such as actual treatment records.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).  

The Court cautioned in Kahana that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence.  The definition of evidence encompasses "negative evidence" tending to disprove the existence of an alleged fact.  Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002).

Ultimately, though, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).  The Board therefore may consider the absence of any indication of a relevant medical complaint until relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period for which there was no clinical documentation of the claimed disorder).

For non-combat Veterans providing non-medical related testimony regarding an event during service (or where the incident in question is not claimed to have occurred in combat), Buchanan is distinguishable; the lack of documentation in service records must be weighed against the Veteran's statements).  Bardwell v. Shinseki, 24 Vet. App. 36 (2010).  But in cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable.  This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence.  If the Veteran engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  The Federal Circuit Court has held that in the case of a combat Veteran, not only is the combat injury presumed, but so, too, is the disability due to the combat injury.  Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012).  To establish entitlement to service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury.  Id. (citing Shedden, 381 F.3d 1163 at1167).

The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other relevant evidence.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).  The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id., at 1076; see also 38 U.S.C.A. § 7104(a).  Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson, 2 Vet. App. at 618.  As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  See also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, 
self-interest, malingering, desire for monetary gain, and witness demeanor).

Reasonable doubt concerning any matter material to the determination of whether the Veteran is entitled to service connection is resolved in his favor.  38 C.F.R. § 3.102.  But according to § 3.102, when considering application of the benefit-of-the-doubt doctrine, reasonable doubt is one within the range of probability, as distinguished from pure speculation or remote possibility.

As specifically concerning this claim for left ear hearing loss, the threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss.  See Hensley v. Brown, 5 Vet. App. 155 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., 
at 110-11 (1988)).  But before service connection may be granted for hearing loss, it must be of a particular level of severity to constitute a ratable disability.  For purposes of applying the laws administered by VA, impaired hearing only will be considered to be a ratable disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) 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.  See 38 C.F.R. § 3.385.

According to the holding in Hensley, however, it is not necessary the Veteran have had this degree of hearing loss while in service, or even within the one-year presumptive grace period following his discharge from service for the initial manifestation of sensorineural hearing loss, in particular, to the minimally required degree of at least 10-percent disabling as an organic disease of the nervous system to warrant presuming it was incurred in service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303 , 3.307, 3.309(a).  Instead, he need only now have this degree of hearing loss, or at least at some point since the filing of his claim, and have evidence linking this present-day hearing loss to his military service, such as to exposure to excessively loud noise while in service or to a particular event, disease, or injury, as opposed to other unrelated or intercurrent factors or causes.  See also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).


The Veteran had active military service in the Navy from July 1951 to August 1954, in the Marine Corps from October 1954 to October 1957, and in the Air Force from October 1957 to July 1977.  He is claiming entitlement to service connection for hearing loss in his left ear, that is, in addition to the hearing loss in his right ear that already has been determined service connected, so already conceded as related to or the result of his military service.

His military personnel records, including especially his DD Form 214, indicate he was an aircraft maintenance technician in service.  His military occupational specialty (MOS) in the Air Force has been identified as an occupation where there was a high probability of noise exposure.  See Duty MOS Noise Spreadsheets, Veterans Benefits Administration Fast Letter 10-35 (Dep't of Veterans Affairs, September 2, 2010).  Accordingly, the Board concedes he sustained noise trauma during his service, again, as evidenced by VA since granting service connection for his right ear hearing loss on this premise.

As has been indicated when previously adjudicating or developing this claim, the results of the Veteran's May 2007 VA compensation examination indicate he is deaf in his left ear since he has 105+ decibel losses at each of the relevant frequencies of 500, 1000, 2000, 3000 and 4000 Hertz and has 0-percent speech recognition.  So, clearly, he has sufficient hearing loss in this ear to satisfy the threshold minimum requirements of 38 C.F.R. § 3.385 to be considered a ratable disability by VA standards.

His service treatment records (STRs) show that his enlistment and discharge examinations from the Navy and Marine Corps do not indicate any complaints or treatment relating to left ear hearing loss but, instead, show normal hearing of 15/15 on whispered voice testing.  See e.g., July 1951 entrance examination.  During his October 1954 entrance examination he reported no ear-related problems and had normal hearing of 15/15 on whispered voice testing.  See also May 1955 examination noting 15/15 on whispered voice testing.  He did report a left earache in July 1957 and was diagnosed with otitis externa.  There was no follow up for this condition and during his October 1957 separation examination he was not diagnosed with, and did not complain of, any ear-related problems.  

His October 1957 Air Force enlistment exam also shows normal hearing of 15/15 on whispered voice testing.  As well, the reports of his July and October 1963, November 1965, September 1966, and April 1968 periodic and flight examinations indicate his hearing acuity in this ear was still generally within normal limits on those several additional occasions.  In his September 1966 Report of Medical History, he specifically denied any hearing loss.

Prior to November 1967, military audiometric results were reported in American Standards Association (ASA) units; VA used ASA units prior to July 1966.  However, in July 1966, VA adopted International Organization for Standardization (ISO) units, and the military followed suit in November 1967.  The current definition for a hearing loss disability found at 38 C.F.R. § 3.385 is based on ISO units.  The military audiogram the Veteran had in April 1968 noted that it was conducted using ASA units and, as such, must be converted from ASA to ISO units.  This means adding 15 decibels to the findings reported in the 250 and 500 Hertz frequencies, 10 decibels to those reported in the 1000, 2000, and 3000 Hertz frequencies, 5 decibels at 4000 Hertz, and 10 decibels at 6000 and 8000 Hertz.

During the Veteran's medical examination in April 1968, he was given a hearing evaluation.  Pure tone thresholds, converted from ASA to ISO units, in decibels, were as follows:


HERTZ


500
1000
2000
3000
4000
6000
LEFT
5
0
0
0
-5
0


The report of his July 1970 periodic examination, however, notes he had high frequency hearing loss, mild, bilaterally.  Concerning his left ear, in particular, his pure tone thresholds, in decibels, were as follows: 


HERTZ


500
1000
2000
3000
4000
6000
LEFT
10
0
5
10
10
35

In July 1974 he received treatment for complaints of his ears being plugged up and his ear canals being full of wax, requiring irrigation of the cerumen (earwax).

A November 1975 note indicates he showed high frequency hearing loss on his periodic exam.  The report of that November 1975 periodic exam indicates his left ear pure tone thresholds, in decibels, were as follows: 


HERTZ


500
1000
2000
3000
4000
6000
LEFT
15
0
10
10
15
50


Similarly, the report of his March 1977 military retirement examination notes bilateral high frequency hearing loss.  His left ear pure tone thresholds, in decibels, were as follows: 


HERTZ


500
1000
2000
3000
4000
6000
LEFT
0
0
0
0
0
40

So there were at least three occasions during his many-year military career when there were objective clinical indications, based on the results of audiometric testing, of hearing loss in his left ear - albeit only at 6,000 Hertz, which is outside (above) the 500 to 4000 Hertz frequency range contemplated by 38 C.F.R. § 3.385.


Nevertheless, as already explained, the absence of a ratable hearing loss disability in service, according to 38 C.F.R. § 3.385, is not fatal to the Veteran's claim.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Even though disabling hearing loss may not be demonstrated in service, a Veteran may nevertheless establish entitlement to service connection for a current hearing loss disability by having evidence associating the current disability to his service.  See Hensley v. Brown, 5 Vet. App. 155 (1993).  In sum, the fact that he had some measure of hearing loss at the 6000 Hz level in service is probative evidence in support of his claim, even though it does not meet the criteria for a ratable hearing loss disability according to VA standards.

However, there still must be competent and credible evidence establishing a relationship or correlation between his current left ear hearing loss (deafness) and his military service, either to that loss in the 6000 Hertz frequency that he had during his service, to the acoustic trauma that VA already has conceded he sustained, or to the left ear conditions (otitis externa and wax buildup) that were noted during his service.  Supporting medical evidence is required to establish this causation in this instance because hearing loss, including the etiology of it, is not the type of "simple" condition readily amenable to mere lay comment.  See Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to obtain a medical opinion on the issue).  In certain other instances, lay evidence has been found to be competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  But laypersons also have been found not competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).  So, again, this determination depends entirely on the specific condition at issue.

The Veteran's military service ended in July 1977, and a left ear hearing loss disability according to VA standards was not first identified until 1998, so not until some 21 years later (over two decades).  This, alone, is not altogether dispositive of his claim, however, so long as there is the required evidence linking the hearing loss disability affecting this ear back to his military service.  See 38 C.F.R. § 3.303(d).  But the most probative evidence addressing this determinative issue is unfavorable to the claim.

An August 1998 letter from a private ENT specialist, Dr. R.W., indicated that he had seen the Veteran in his office in July 1998, so the prior month, for complaints of a gradual hearing loss since 1977, thus purportedly dating back to the Veteran's service.  Dr. R.W. noted the Veteran's history of noise exposure from working around jet airplanes for many years.  Dr. R.W. stated that "[a]udiometry shows an essentially dead ear on the left with typical high frequency neurosensoral hearing loss induced on the right."  Dr. R.W.'s impression was that the left ear was gone, with "noise induced hearing loss on the right."  Dr. R.W. strongly recommended the Veteran undergo magnetic resonance imaging (MRI) to rule out acoustic neuroma or other posterior fossa tumor, but the Veteran refused.

While this doctor's report suggests the Veteran's right ear hearing loss was caused by noise exposure in service, there is no such definitive comment concerning the hearing loss in his left ear.  Dr. R.W. recommended, instead, that an MRI be performed to determine the etiology of the left ear hearing loss, but the Veteran refused.  Also, the more than twenty-year lapse between the conclusion of the Veteran's military service and the first confirmation of a left ear hearing loss disability according to VA standards is other probative evidence against the claim.  See again Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service resulting in any chronic or persistent disability).  See again also Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating 

continuity of symptomatology and had failed to account for the lengthy time period for which there was no clinical documentation of the claimed disorder).  Also keep in mind that, even with a showing of continuity of symptomatology since service, there still would have to be medical nexus evidence associating the current hearing loss in this ear with those continuing symptoms.

The Veteran had a VA compensation examination in May 2007 for this necessary medical comment concerning the etiology of his left ear hearing loss disability.  The May 2007 VA examiner's report ultimately provides an unfavorable opinion as to this purported relationship between the current left ear hearing loss (deafness) and the Veteran's military service.  The report of this evaluation explains that the Veteran appears to have entered service with normal hearing for all intents and purposes, although it is possible he had a high frequency hearing loss (in the range above 4000 Hertz) since, according to this VA examiner, whispered voice testing often misses existing high frequency hearing loss.

This report also provides that, as to the shift in hearing at 6000 Hz during his military service, while this frequency is not used for VA rating purposes, it can indeed be an early indicator of noise-related changes.  But ultimately, this VA examiner concluded that only the Veteran's right ear hearing loss was as likely as not (50/50 probability) caused or at least aggravated by his military service.  And this favorable opinion concerning the right ear is the reason service connection since has been granted for the hearing loss in that ear.  But concerning the left ear, this VA examiner indicated that it should however be noted that the left ear hearing loss is NOT typical of hearing loss from noise many years following the noise exposure or antecedent event.  This VA examiner therefore could not totally attribute the hearing loss in the left ear to being related to the Veteran's military service, especially since hearing loss based on noise exposure is typically bilateral (meaning affecting both ears, right and left) and equal in nature and degree, certainly NOT as asymmetric as the Veteran left ear hearing loss is currently.


This VA C&P examiner's report seems consistent with an August 1998 letter from the private ENT specialist, R.C.W., M.D., since both doctors more so related the hearing loss in the Veteran's right ear to previous noise exposure coincident with his military service, without also definitively indicating this connection equally applies to his left ear.  However, the VA C&P examiner kept open this possibility by acknowledging that the shift in hearing at 6,000 Hertz during the Veteran's military service indeed could be an early indicator of noise-related changes, and since this VA C&P examiner, by saying he could not "totally" attribute the hearing loss in the left ear to being related to the Veteran's military service, by implication, is also acknowledging that at least a portion of the hearing loss in this ear (now deafness) could be the result of his military service.

Therefore, pursuant to the Board's April 2010 remand, an additional medical nexus opinion was requested as a result of the equivocality in the May 2007 VA examiner's report.  In particular, the Board was concerned with this evaluating VA audiologist's statement that the shift in hearing at 6000 Hz during the Veteran's military service could indeed be an early indicator of noise-induced changes.  This evaluating audiologist also had stated that she could not "totally" attribute the hearing loss in the Veteran's left ear to his military service, thereby indicating (at least by implication) that at least some of his hearing loss in this ear could be due to noise exposure in service.  The Board also considered it potentially significant that the Veteran's STRs showed that, in July 1957, he had received treatment for left ear symptoms (specifically, an ear ache) diagnosed as otitis externa, but which apparently had resolved.  As well, his STRs showed that, in July 1974, he had received treatment for complaints of his ears being plugged up and his ear canals being full of wax, requiring irrigation of the cerumen.  Hence, additional comment was needed as to whether and to what extent those problems may have been affecting his hearing in his left ear.  Because, then, of this looming uncertainty and need for additional medical comment, the Veteran was initially evaluated by another VA audiologist in May 2010.  In her report, however, this audiologist indicated the requested opinion concerning the etiology of the Veteran's left ear hearing loss should be made by an ENT physician (otolaryngologist), so a specialist.  Therefore, she declined to comment.

In August 2010, a VA ENT physician reviewed the claims file and examined the Veteran personally before concluding that his left ear hearing loss is unrelated to his military service - including to the type of noise exposure alleged.  In disassociating the current left ear hearing loss from service, this commenting physician provided the following rationale:

The [Veteran] is service connected for his right[-]sided hearing loss, and rightly so since this is SNHL [sensorineural hearing loss] that is typical for noise-induced hearing loss and the [Veteran] did have a significant amount of noise trauma in the military that could be related to this.  The hearing loss on the left side is NOT typical of noise[-] induced hearing loss.  The [Veteran] is essentially deaf on the left side with only mild to moderate loss on the contralateral side - This can occur for a number of reasons: 

1.  Brain tumor:  the [Veteran] has had an MRI that has ruled this out 

2.  Meniere's Disease:  but the [Veteran] does not have associated symptoms such as vertigo and tinnitus that accompany this disease 

3.  Sudden sensorineural hearing loss secondary to an ischemic event or viral illness:  I think that this is more likely the cause of his hearing loss, but he does not confirm an acute loss that would be typical for this cause 

4.  Significant unilateral noise trauma:  the [Veteran] denied a history of an event consistent with this 

Therefore, I cannot confirm an etiology of his profound hearing loss on the left side, but I do feel it is medically accurate to conclude that his PROFOUND hearing loss on the left side was not caused by repetitive noise trauma such as he described in his history.  There is some other cause of his PROFOUND hearing loss.  

If this etiology for his (sic) not present that caused his PROFOUND hearing loss on the left, I would suspect that his hearing on the left would look very similar to the hearing loss that he has on the right.

As reason for vacating the Board's December 2010 decision relying on this opinion as the basis for denying the claim, the Court-granted JMR cited the Board's failure to ensure compliance with its prior April 2010 remand directives by having this designated VA examiner provide responses to all of the questions posed in that remand.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (indicating the Veteran is entitled to this compliance as a matter of law, and that the Board itself commits error in failing to ensure this compliance).  In particular, this VA examiner only had opined that the left ear hearing loss was "not caused by or a result of noise exposure."  The JMR found it significant that this VA examiner did not also opine as to whether the left ear hearing loss could be related to the left ear hearing loss in service (presumably referring to the demonstrated loss in the 6,000 Hz frequency) or to the left ear conditions noted in service, i.e., the otitis externa or wax build up.  In addition, this VA examiner opined that there may be other etiologies of the left ear hearing loss, but did not opine as to whether any of these potentialities could be service related.  For example, he opined that a potential etiology of the Veteran's left ear hearing loss could involve "viral illness," but did not opine, per the Board's remand order, whether this would implicate the Veteran's diagnosis of otitis externa in service.  Thus, in November 2011, the Board again remanded this claim to have the claims file returned to the August 2010 VA compensation examiner so that he could provide a supplemental opinion addressing these additional matters.  And if for whatever reason it was not possible to have this examiner provide this further comment, then someone else equally qualified was to provide it instead.


The Veteran resultantly was afforded another VA examination in February 2012.  The examiner (a surgical resident) observed that the Veteran was "deaf" in his left ear and had moderate hearing loss in his right ear, and that noise exposure alone could not account for this degree of deafness in his left ear.  The examiner noted that an MRI had ruled out cerebellopontine angle mass as a cause and that, at this point, it was likely the Veteran had sudden hearing loss that did not recover.  The examiner indicated this was not due to noise exposure and that the etiologies of sudden hearing loss are unknown at this time.

Even this additional February 2012 medical opinion is insufficient for two reasons, however.  First, part of the rationale for the examiner's determination that the Veteran's hearing loss was not noise-induced was that the Veteran's hearing loss was sudden onset.  However, the report also notes in the section entitled Circumstances and Initial Manifestations that the Veteran had stated that his hearing in his left ear had gradually decreased over time.  There is no inherent reason to doubt the Veteran's competency to make this assertion since it concerns his firsthand knowledge of a factual matter.  See Washington v. Nicholson, 19 Vet. App. 363(2005).  Nor is there any inherent reason to question his credibility concerning this, either.  See Cartright v. Derwinski, 2 Vet. App. 24 (1991); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); and Gilbert v. Derwinski, 1 Vet. App. 49 (1990) [In reviewing a Veteran's claim for VA benefits, the Board must analyze the credibility and probative value of lay evidence and provide a statement of reasons for accepting or rejecting the evidence.].  As held in Cartright, 2 Vet. App. at 25, while interest in the outcome of a proceeding or adjudication "may affect the credibility of testimony, it does not affect competency to testify").  See also Pond v. West, 12 Vet. App. 341, 345 (1999).  Therefore, the examiner should have accepted the Veteran's statements that his left ear hearing loss was gradual, rather than sudden, and should not have used any determination that the hearing loss was sudden as a reason or basis for finding that the hearing loss was not noise-induced.  Cf. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's STRs to provide a negative opinion).

Secondly, the examiner still did not address the other matters requested by the Board.  Specifically, the examiner needed to address the likelihood that the Veteran's current left ear deafness was related to the left ear hearing loss in service in the 6,000 Hz frequency or the left ear conditions, i.e., the otitis externa or wax build up.

Therefore, in September 2012, the Board requested yet another medical nexus opinion before deciding this appeal.  Specifically, the designated ENT specialist was asked to do the following:

1.  Please assess the likelihood (very likely, as likely as not, or unlikely) that the Veteran's left ear hearing loss, i.e., deafness in this ear, is related to the left ear hearing loss in service in the 6,000 Hz frequency.

2.  Please assess the likelihood (very likely, as likely as not, or unlikely) that the Veteran's left ear hearing loss, i.e., deafness in this ear, is related to the left ear conditions noted in service, i.e., the otitis externa or wax build up. 

3.  Please assess the likelihood (very likely, as likely as not, or unlikely) that the Veteran's left ear hearing loss, i.e., deafness in this ear, is related to noise-induced trauma.  In making this assessment, please consider the Veteran's lay statements that his left ear hearing loss was gradual and progressive, rather than sudden onset, and his statements regarding noise exposure in service - including his July 2012 statement noting 3 years in the US Navy (working below decks with high noise levels continuously), 3 years in the Marines Corp (firing 105 cannon shells), and 20 years in the Air Force in a high noise area working around B52s with decibels of 123 with no hearing protection for at least the first 10 years.


It therefore is essential you review all relevant information and evidence in the claims file.  Also please review the previous examinations and opinions of record noted above, including the VA examination reports dated in May 2007, August 2010, and February 2012.  

Please also discuss the underlying rationale of your opinions, whether favorable or unfavorable, if necessary citing to specific evidence in the file.  If, per chance, you determine that you cannot comment on these additional possibilities without resorting to mere speculation, then please also provide some explanation of why this is not possible or feasible; merely saying that you cannot will not suffice.  As examples, it must be specified whether the benefit of additional evidence or other procurable data is needed, there are multiple possible etiologies with none more prevalent than another, or the limits of medical knowledge have been exhausted, etc.

In closing, the Board explained that a discussion of the facts and the medical principles involved would be of considerable assistance to the Board.

The ENT specialist designated to provide this additional medical opinion responded in October 2012.  He indicated that he had reviewed the relevant records, including the previous VA examinations and July 1998 opinion from the private otolaryngologist, R.C.W., M.D.  This commenting ENT specialist recounted findings from years past, both while the Veteran was in service and as noted since service by Dr. R.C.W.  Review of records indicated no known medical basis for the severe asymmertry.  In addition to no intracerebral tumor, there was no history of severe ear infections, no temporal bone fracture or trauma, no local vascular insult, and no acute viral episode (e.g., mumps virus), and no cochlear hydrops or Meniere's disease symptoms were reported as possible etiology.  Certainly, according to this commenting ENT specialist, the Veteran's history of an episode of otitis externa ("swimmer's ear") or cerumen (earwax) accumulation in service could not be causative of the current left ear deafness.  This ENT specialist also concluded that, even the Veteran's history of noise exposure as an aircraft mechanic could not explain the profound, asymmetric, total unilateral deafness, first discovered in 1998.  This ENT specialist explained that this degree of profound asymmetric loss, and the absence of medical illness, whether acute or gradual onset, most often has no known etiology to the limits of medical knowledge, and most reasonably must be attributed to a congenital-acquired basis or cellular apoptosis.  In summary, then, he believed it is extremely unlikely that the Veteran's left ear deafness is in any way related to the mild high frequency (6000 Hz) loss noted in military service.

While this commenting ENT specialist admittedly was unable to determine the exact cause of the hearing loss (deafness) of the Veteran's left ear, he was rather certain that it is not attributable to the Veteran's military service, not only to the loss in the 6000 Hz frequency noted in service, but also to the otitis externa and cerumen accumulation that also were noted in service.  This commenting ENT specialist therefore entirely disassociated this deafness from the Veteran' military service, including, as the JMR directs, by addressing all possible causes or etiologies.  Moreover, in Jones v. Shinseki, 23 Vet. App. 382 (2010), the Court acknowledged there are instances where a definitive opinion cannot be provided because required information is missing or can no longer be obtained or current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability.  In acknowledging this, the Jones Court cited to Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009), which had held the Board need not obtain further medical evidence where the medical evidence "indicates that determining the cause is speculative".

So in light of this and all of the other relevant evidence of record, the Board finds that the preponderance of this evidence weighs against the Veteran's claim that his current left ear hearing loss (deafness) is related or attributable to his military service.  He has not shown continuity of symptomatology since service and, in any event, does not have medical nexus evidence associating this claimed disability with any continuous symptoms he may have experienced since service, including what he has described as a gradual or progressive decline in the hearing acuity in this ear.

All of the medical opinions addressing this determinative issue of causation are either completely unfavorable to the claim or, at best, only etiologically link the hearing loss in his right ear to his military service, not also that in his left ear.  His lay testimony, alone, is certainly insufficient to refute these examiner's unfavorable findings.  Moreover, since the preponderance of the evidence is against this claim, there is no reasonable doubt to resolve in his favor, so this claim must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

The claim of entitlement to service connection for a left ear hearing loss disability is denied.



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

Department of Veterans Affairs