Citation Nr: 1311256	
Decision Date: 04/04/13    Archive Date: 04/19/13

DOCKET NO.  08-21 203	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to service connection for left ear hearing loss. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

A. Haddock, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1955 to September 1981.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Muskogee, Oklahoma Department of Veterans Affairs (VA) Regional Office (RO).  In June 2010, the Veteran appeared and provided testimony before the undersigned Acting Veterans Law Judge.  A transcript of the hearing is associated with the claims file.  

In January 2011 and May 2012 the Board remanded this issue and the issue of entitlement to service connection for vertigo to the RO for further development.  The required development has been completed and this case is appropriately before the Board.  See Stegall v. West, 11 Vet. App. 268 (1998).  

A review of the record shows that in a January 2013 rating decision, the Veteran was granted entitlement to service connection for vertigo, effective December 3, 2012.  There is no indication that the Veteran has expressed disagreement with the disability rating assigned in that decision.  Therefore, this is considered a full grant of the benefit sought on appeal as to that issue.  The Board has therefore limited its consideration to the issue of entitlement to service connection for left ear hearing loss.  

The Board has reviewed the Veteran's physical claims file and his file on the "Virtual VA" system to insure a total review of the evidence.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).



FINDING OF FACT

Left ear hearing loss was not manifested during the Veteran's active duty service or for many years thereafter, nor is left ear hearing loss otherwise related to such service.  


CONCLUSION OF LAW

Left ear hearing loss was not incurred in or aggravated by active service, and may not be presumed to have been incurred or aggravated therein.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Veterans Claims Assistance Act of 2000

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

Duty to Notify

After reviewing the claims folder, the Board finds that the Veteran has been notified of the applicable laws and regulations which set forth the necessary criteria for the benefits currently sought.  The Veteran was informed of the information and evidence necessary to warrant entitlement to the benefits sought in a February 2007 letter.  Moreover, in the February 2007 letter, the Veteran was advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).  The Board notes that this letter was sent to the appellant prior to the August 2007 rating decision currently on appeal.  The VCAA notice was therefore timely.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

Further, the notice requirements apply to all five 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.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  In the present appeal, the Veteran was provided with notice of what type of information and evidence was needed to substantiate the claim for service connection.  Further, the February 2007 letter gave notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal.

In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.)  See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).

Duty to Assist

VA has obtained service and post service treatment records; assisted the Veteran in obtaining evidence; and afforded the Veteran a VA audiological evaluations.  A supplemental addendum opinion was obtained in June 2012 pursuant to the Board's May 2012 remand.  All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims files; and the Veteran and his representative have not contended otherwise.  

VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time

II. Legal Criteria

Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Sensorineural hearing loss (recognized by VA as an organic disease of the nervous system) may 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 of the date of separation from service.  38 U.S.C.A. § 1112(a)(1); 38 C.F.R. § 3.307(a)(3).

For the purpose of applying the laws administered by VA, 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 the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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.

The Board notes that the lack of any evidence that the Veteran exhibited hearing loss during service is not fatal to his claim.  The laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Instead, as noted by the United States Court of Appeals for Veterans Claims (Court):

[W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385 ...For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for 'disability' under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes.

Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is 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, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ('although interest may affect the credibility of testimony, it does not affect competency to testify').

A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (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).

The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an 'absolute bar' to the service connection claim); Barr, 21 Vet. App. 303 ('Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms').

In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment.  Caluza v. Brown, 7 Vet. App. 498 (1995).

III. Analysis

The issue before the Board is entitlement to service connection for left ear hearing loss.  The Board preliminarily notes that there is no controversy in this case with regard to whether the Veteran currently suffers from left ear hearing loss.  The evidence, including the most recent VA audiological evaluation (December 2012) shows that the Veteran has left ear hearing loss that meets the criteria to be considered a hearing loss disorder for VA purposes.  

The Board notes at the time of the Veteran's March 1955 enlistment examination, audiometry testing was not conducted.  However, at that time, the Veteran specifically denied any ear, nose, or throat trouble, and on whisper voice test, his hearing was within normal limits.  

A February 1958 service treatment record shows that the Veteran sought treatment for a chest cold and pharyngitis.  On follow-up treatment the Veteran complained of symptoms of externa of the right ear and was later diagnosed with a perforation of the right ear drum.  There is no indication that his left ear was affected by the right ear drum perforation.  

On July 1958 re-enlistment examination, an audiometry again was not conducted, but the Veteran's ears and drums were found to be normal on clinical evaluation and on whisper voice test, his hearing was within normal limits.  

On August 1968 periodic medical examination, audiometry showed puretone thresholds in the left ear, in decibels, were: 




HERTZ



500
1000
2000
3000
4000
LEFT
0
10
10
15
15

On clinical evaluation, the Veteran's ears and drums were found to be normal.  

On a November 1973 report of medical history, the Veteran denied any history of ear disease or being hard of hearing.  

On June 1974 periodic medical evaluation, audiometry showed puretone thresholds in the left ear, in decibels, were: 




HERTZ



500
1000
2000
3000
4000
LEFT
10
10
10
10
25

On clinical evaluation, the Veteran's ears and drums were found to be normal.  

A hearing evaluation conducted in March 1975 revealed puretone thresholds in the left ear, in decibels, were: 




HERTZ



500
1000
2000
3000
4000
LEFT
5
10
10
10
15

Speech audiometry revealed speech recognition ability of 100 percent in the left ear.

On July 1977 annual physical, audiometry showed puretone thresholds in the left ear, in decibels, were: 




HERTZ



500
1000
2000
3000
4000
LEFT
5
0
5
15
15

On clinical evaluation, the Veteran's ears and drums were found to be normal.  On the associated report of medical history, the Veteran reported a history ear, nose, or throat trouble; however, he specifically denied any history of hearing loss.  

April 2003 private treatment records from the Oklahoma Ear Institute, show that the Veteran was seen for complaints of dizziness and ear noises.  The Veteran reported that he was bothered by noises in his ears/head on the right side and he denied any history of exposure to loud noises for any length of time.  On audiometry, puretone thresholds in the left ear, in decibels, were: 





HERTZ



500
1000
2000
3000
4000
LEFT
10
5
10
25
30

Speech audiometry revealed speech recognition ability of 100 percent in the left ear.  The audiologist noted that the Veteran's hearing was normal through 2000 hertz, and there was a sloping to severe loss through 4000 hertz.  It was also noted that the Veteran's word recognition ability was excellent bilaterally.  The Veteran was advised to follow-up with his treating otolaryngologist.  After review of the audiometry findings, the Veteran's treating physician diagnosed tinnitus secondary to high frequency sensorineural hearing loss.  There was no opinion provided as to whether such diagnosis was related to any history of noise exposure.  

On July 2003 follow-up private audiometry, conducted at the Oklahoma Ear Institute, puretone thresholds in the left ear, in decibels, were:




HERTZ



500
1000
2000
3000
4000
LEFT
0
10
5
20
30

Speech audiometry revealed speech recognition ability of 100 percent in the left ear.

The Veteran was afforded a VA examination in June 2007.  At that time, he reported that he suffered from a perforated right ear drum and was placed on antibiotics while on active service.  He reported that he had constant tinnitus and problems hearing, mainly at high volumes.  On audiometry, puretone thresholds in the left ear, in decibels, were: 




HERTZ



500
1000
2000
3000
4000
LEFT
20
30
20
30
45

Average puretone thresholds were 31 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 88 percent in the left ear.  The examiner noted that the Veteran had developed a sensorineural hearing loss with tinnitus.  However, no opinion as to the etiology of the hearing loss disability was provided.  

The Veteran was afforded another VA examination in February 2008.  At that time, he reported that he had difficulty hearing and understanding speech most of the time.  He reported that his military duties consisted of being a cable and antenna specialist and that he fired weapons with his right hand.  He denied use of hearing protection while on active service.  He reported postservice occupational noise exposure from working at a box manufacturing plant for nine months without hearing protection and as an operations manager for a restaurant supply company for 15 years without hearing protection.  He reported use of power tools without hearing protection and that he had worked in noisy environments.  He reported a history of ear disease and ear infections in his right ear only.  On audiometry, puretone thresholds in the left ear, in decibels, were:




HERTZ



500
1000
2000
3000
4000
LEFT
10
15
5
15
25

Average puretone thresholds were 15 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 100 percent in the left ear.  The examiner noted that there was no hearing loss present in the Veteran's left ear, and as such no diagnosis was made and no opinion was provided.

The Veteran was afforded another VA examination in March 2011.  At that time, he reported trouble hearing, greater in the right ear than the left.  He reported military noise exposure from heavy equipment such as airplanes, jackhammers, and generators.  He reported hearing protection was used for a portion of his military duties, when available.  He reported postservice occupational noise exposure at various jobs from heavy equipment such as forklifts and generators, without the benefit of hearing protection.  He reported postservice recreational noise exposure associated with target shooting and motorcycles.  On audiometry, puretone thresholds in the left ear, in decibels, were:




HERTZ



500
1000
2000
3000
4000
LEFT
10
15
10
20
45

Average puretone thresholds were 23 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 96 percent in the left ear.  The examiner noted that the Veteran's hearing sensitivity was noted to be within normal limits from 500 to 3000 Hertz.  At 4000 Hertz, the examiner diagnosed sensorineural hearing loss.  After review of the Veteran's claims files, to include his service treatment records, and examination of the Veteran, the examiner opined that the Veteran's current hearing loss disability was less likely than not related to his active service, as there was no evidence of hearing loss noted during his active service; specifically, the examiner noted that the Veteran's entrance and exit examinations showed that his hearing was within normal limits for VA purposes.  [The Board notes that the Veteran's separation examination is not currently associated with the claims file or the Veteran's STRs, and the closest medical examination in time to the Veteran's September 1981 separation is the July 1977 annual medical evaluation discussed above.]

In June 2012, the Veteran's claims files were returned to the March 2011 VA examiner for a clarifying opinion and rationale.  After review of the claims files and the March 2011 VA examination report, the examiner confirmed her opinion that the Veteran's left ear hearing loss was less likely than not related to his active military service.  The examiner explained that the Veteran's hearing sensitivity at enlistment and separation from active duty was normal, and that noise induced hearing loss occurs immediately and does not have a delayed onset by weeks, months, or even years after the noise exposure occurs.  Therefore, as the Veteran's hearing sensitivity in his left ear was normal at separation, it was the examiner's opinion that any current hearing loss disability was less likely than not related to his active military service.  

The Veteran was afforded another VA examination in September 2012.  At that time, the Veteran reported that he had been experiencing bilateral tinnitus and hearing loss, greater in the right ear than the left, since 1975, which may have resulted from a right ear drum perforation.  He reported difficulty hearing in background noise.  On audiometry, puretone thresholds in the left ear, in decibels, were:




HERTZ



500
1000
2000
3000
4000
LEFT
20
20
20
25
40

Average puretone thresholds were 27 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 96 percent in the left ear.  The examiner diagnosed sensorineural hearing loss disability in the left ear.  The examiner opined that the Veteran's left ear hearing loss was at least as likely as not related to his active service.  The rationale provided by the examiner was that the Veteran had reported being exposed to noise while on active service.  The examiner specifically noted that a review of the Veteran's claims files and medical records was not conducted prior to examining the Veteran and providing the medical opinion.  

Of record is a December 2012 VA examination afforded to the Veteran in connection with his claim of entitlement to service connection for vertigo.  Audiometry conducted at that examination showed that puretone thresholds in the left ear, in decibels, were: 




HERTZ



500
1000
2000
3000
4000
LEFT
10
15
10
20
45

Average puretone thresholds were 23 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 96 percent in the left ear.  Moderate sensorineural hearing loss at 4000 hertz was diagnosed.  As the purpose of this examination was to assess the etiology of the Veteran's vertigo, an opinion as to the etiology of his left ear hearing loss was not requested, nor provided.  

Also of record are the statements the Veteran made at his June 2010 Board hearing.  At that time, the Veteran testified that while in the United States Air Force he worked in close proximity to flight lines and was exposed frequent jet engine noise.  He reported that he was issued ear plugs to use while working near the flight line, but that they did not work very well.   

The Board accepts that the medical evidence of record shows that the Veteran currently meets the requirements of 38 C.F.R. § 3.385 for left ear hearing loss disability.  The Board also notes the Veteran's statements made during his VA examinations and his June 2010 Board hearing regarding noise exposure in service.  The Veteran's DD Form 214 lists his military occupational specialty (MOS) as a cable and antenna installation and maintenance superintendent and supervisor.  Additionally, the Board notes that the Veteran is service-connected for bilateral tinnitus as a result of noise exposure in service and right ear hearing loss due to a perforated ear drum sustained while on active service.  Based on the Veteran's MOS and the fact that he is service-connected for tinnitus based on noise exposure, the Board concedes that he was exposed to some level of noise while on active service.  The question remains whether his current left ear hearing loss disability is causally related to the noise exposure some twenty years before.  

The Board notes that while the Veteran is competent to report symptoms he experiences, the Veteran is not competent to report the etiology of his disabilities since this requires medical knowledge.  See Barr, 21 Vet. App. at 309.  To the extent that the Veteran is competent to report continuing pertinent symptoms during and since service, his credibility is diminished in view of the contemporaneous evidence.

The Board notes that on July 1977 annual medical evaluation, the Veteran's hearing sensitivity was within normal limits, his ears and drums were found to be clinically normal, and he specifically denied any history of hearing loss.  The postservice medical evidence does not reflect complaints or treatment related to hearing loss for many years following active service.  Furthermore, the first postservice evidence of complaints of hearing loss from April 2003, show that the Veteran denied any long term noise exposure.  The Board emphasizes the multi-year gap between discharge from active service (1981) and initial contemporaneous documentation of reported symptoms of left ear hearing loss in 2003 (a 22 year gap).  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability).  Consequently, the one-year presumption of service incurrence for sensorineural hearing loss is not for application here.

Regarding whether the Veteran's left ear hearing loss is otherwise related to his service, to include noise exposure therein, the Board notes that there are two medical opinions that address this question; the March 2011 VA examination report, coupled with the June 2012 addendum opinion, and the September 2012 VA examination report and opinion.  

The Board notes that the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact.  The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts and whether the opinion applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion.  See Nieves-Rodriguez, 22 Vet. App. 295 (2008).  Also, consistent with Nieves-Rodriguez, among the factors for assessing the probative value of a medical opinion are the thoroughness and detail of the opinion.  Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Greater weight may be placed on one physician's opinion over another's depending on factors such as reasoning employed, and whether or not and to what extent they reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36 (1994).

In this case, the Board finds that the September 2012 VA opinion is not adequate, as the examiner did not conduct a review of the claims files and medical records prior to providing the nexus opinion.  In this regard, the Board notes that evidence contained in the claims files does not support the Veteran's statements that he had been experiencing decreased hearing in his left ear since 1975, as there is no contemporaneous evidence to support such an assertion.  Furthermore, the Board finds that the September 2012 examiner's rationale was based solely on the history as reported by the Veteran that he was exposed to noise while on active service and did not cite to any valid medical analysis or significant facts of the case as the basis for the opinion.  Therefore, the Board finds the September 2012 VA opinion is inadequate and cannot be used to support an award of service connection.  

Having found the September 2012 opinion inadequate, the only remaining medical evidence of record that addresses the question of a nexus between the Veteran's left ear hearing loss and his active service is that of the March 2011 VA examination report, and June 2012 addendum opinion, wherein the examiner opined that the Veteran's current left ear hearing loss was not related to his active service.  In reaching this conclusion, the examiner interviewed the Veteran, examined him, and reviewed his claims file (including his service treatment and private treatment records).  The examiner noted in both the March 2011 examination report and the June 2012 addendum opinion that the Veteran's hearing sensitivity at enlistment and separation from active service was within normal limits.  In the June 2012 addendum opinion the examiner explained that noise induced hearing loss does not have a delayed onset of weeks, months, or even (as seen here) years, and therefore, the Veteran's current left ear hearing loss was not caused by his active service, to include any noise exposure therein.  The opinion is clearly expressed, based on an informed review of the Veteran's medical history, and persuasive.  

In this case, the Board is presented with an evidentiary record which persuasively weighs against service connection for the Veteran's left ear hearing loss.  The evidence against such a link includes the March 2011 VA examination report and the June 2012 addendum opinion, as well as the Veteran's April 2003 private treatment records which showed he denied any history of long term noise exposure.  The only evidence in favor of such a link is the Veteran's assertions made at his VA examinations and his June 2010 Board hearing that his current left ear hearing loss was caused by his active service, to include his noise exposure therein, as well as the September 2012 VA examination report, which the Board has found to be inadequate for rating purposes.  The Board finds the evidence in favor of the Veteran's claim unpersuasive in light of the other evidence of record.  Notably, as a lay person, while the Veteran is competent to testify as to the symptoms he experiences (such as hearing loss), it is beyond his competence to opine that his left ear hearing loss disability is related to his active service, to include his exposure to noise trauma therein.  Such question is medical in nature and may not be resolved by mere lay observation; the Veteran does not have training to opine regarding medical etiology.  See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court).

After thorough review of the evidence currently of record, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for left ear hearing loss.  Consequently the benefit-of-the-doubt rule does not apply, and service connection for left ear hearing loss is not warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

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


____________________________________________
T.D. JONES
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs