Citation Nr: 1315051 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 05-10 703A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for right ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from July 1968 to March 1970. He is the recipient of the Combat Infantryman Badge and Bronze Star Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1997 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Board observes that in the February 1997 rating decision, the RO reopened the Veteran's claim for service connection for hearing loss and then denied the claim on the merits. The Veteran timely perfected his appeal with regard to this decision, but, for reasons unknown, the appeal was not certified to the Board. Therefore, although the Veteran's hearing loss claim was subsequently denied by the RO in a February 2003 rating decision, the February 1997 rating decision is the one properly on appeal before the Board with regard to this claim. In February 2009, August 2010, November 2011, and June 2012 the Board remanded this matter to the agency of original jurisdiction for further development. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). The purpose of the most recent June 2012 remand was to, in part, seek to obtain records from the Social Security Administration (SSA). SSA records were determined to be unavailable. See September 2012 Formal Finding of Unavailability, issued by the Appeals Management Center. The June 2012 remand also instructed that the Veteran be afforded another examination. The remand pointed out that prior examinations (in March 2009 and September 2010) conducted during the appeal period were inadequate. The examination scheduled pursuant to the Board's June 2012 remand occurred in July 2012. After review of the complete evidentiary record, the Board has determined that compliance has now occurred with the Board's orders in the above-cited June 2012 remand and that the Board may now proceed with adjudication of the claim. FINDING OF FACT There is no competent or credible evidence of a nexus between the post service diagnosis of a right ear hearing loss disability and service, to include a finding of manifestations of sensorineural hearing loss within one year following discharge from service. CONCLUSION OF LAW A right ear hearing loss disability was not incurred in or aggravated by active service and a sensorineural hearing loss may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 , 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties To Notify And Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The Board parenthetically observes that the VCAA, as noted, was enacted in 2000; this is after the Veteran's instant claim arose from the above-mentioned February 1997 RO decision. Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Concerning the appeal of the service connection claim now before the Board, seeking service connection for right ear hearing loss, the Veteran was provided notice that met these requirements in a March 2005 Statement of the Case (SOC). This of course came after the adjudication of the claim in February 1997. This notice complied with some of the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Additional notice was provided to the Veteran by means of a December 2006 letter, which included enclosures pertaining to "How You Can Help and How VA Can Help You" and "What the Evidence Must Show - Service connected comp." The notice also included notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded (see Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006)). Although this above-mentioned notice postdated the February 1997 adjudication, no prejudice resulted as the claim was subsequently readjudicated without taint from the prior decision. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of fully compliant notification followed by readjudication of the claim, such as a SOC or Supplemental SOC (SSOC), is sufficient to cure a timing defect). To this, in addition to the March 2005 SOC, the RO provided SSOCs in March 2007, March 2010, and August 2011, and January 2013 which reported the results of its review of the issue on appeal. For the reasons discussed above, therefore, the Board finds that VA has fulfilled its VCAA notification duties to the Veteran to the extent necessary. The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his service connection claim. He has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to the VA notice. There is no evidence of any failure on the part of VA to further comply with the duty to notify that reasonably affects the outcome of this case. The duty to assist the appellant has also been satisfied in this case. Available post-service medical records are in the claims file and were reviewed by both the RO and Board in connection with the appellant's claim. The appellant has not informed VA of any obtainable existing medical records which may be helpful in the adjudication of his claims. VA is not on notice of any evidence needed to decide the claim which has not been obtained. VA examinations, some of which were noted by the Board to have been inadequate, were obtained with regard to the claim for service connection for right ear hearing loss. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the July 2012 VA examination (and included opinions) obtained in this case is adequate, as it was predicated on a reading of the service and post-service medical records in the Veteran's claims file. The examination considered all of the pertinent evidence of record, to include the Veteran's service and post-service records and provided a reason for the opinions stated, considering the Veteran's history and the records reviewed. There is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the service connection issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. In addition, all relevant, identified, and available evidence has been obtained. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. Laws and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed -- such as organic diseases of the nervous system such as sensorineural hearing loss -- at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)) (holding that a finding of continuity of symptomatology to presume service connection for a chronic disease applies only to the diseases listed at 38 C.F.R. § 3.309(a)). Any other form of hearing loss, such as conductive hearing loss, is not subject to service connection based upon continuity of symptomatology. In adjudicating a claim, the Board must assess the competence and credibility of the veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The veteran is competent to provide facts about what he experienced; for example, he is competent to report that he engaged in certain activities in service and currently experiences certain symptomatology. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, at 1337. However, such lack of contemporaneous evidence is for consideration in determining credibility. Concerning the claim here seeking service connection for right ear hearing loss, service connection for certain diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be 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 absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385 ) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Board also notes that Training Letter 10-02 was issued in March 2010 regarding the adjudication of claims for hearing loss. In that letter, the Director of the VA Compensation and Pension Service indicated that the two most common causes of sensorineural hearing loss are presbycusis (age-related hearing loss) and noise-induced hearing loss (caused by chronic exposure to excessive noise). It was also noted that the presence of a notch (of decreased hearing) that may be seen on audiograms generally at frequencies of 3000, 4000, or 6000 Hertz with a return toward normal at 8000 Hertz may be indicative of noise-induced hearing loss. The United States Court of Appeals for the Federal Circuit has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), 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, (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. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background The service treatment records show that in the course of a June 1968 enlistment examination no hearing defects were reported. Audiometer findings did not include any findings in excess of five decibels at any of the measured Hertz levels. At his March 1970 separation examination, bilateral hearing findings were reflected as "15/15"; it was reported this was on whispered voice testing. This (15/15) is considered a normal testing result. See Smith v. Derwinski, 2 Vet. App. 137, 138, 140 (1990). The Veteran's claim for service connection was received in January 1995. See VA Form 21-526. The report of a March 1995 VA audio examination shows that the Veteran reported having hearing problems, which began four to five years ago. Audiometric examination showed a right ear speech recognition score of 88 percent. This, pursuant to 38 C.F.R. § 3.385 (i.e., speech recognition score less than 94 percent), satisfies the requirement for hearing loss for VA purposes. A February 1996 VA outpatient clinic record shows that the Veteran complained of worsening hearing acuity. He gave a history of incurring a concussion injury in 1985. Tinnitus was diagnosed, no audio deficit was observed. VA audiologic evaluation findings, also dated in February 1996, showed normal hearing thresholds. Speech discrimination scores were reported to be "excellent." Audiometric findings are included as part of a March 1996 VA audio examination report. The Veteran provided a history of noise trauma within the past 60 days. An August 1999 VA outpatient clinic note problem list includes hearing loss. Audiometric testing was not accomplished. A September 2002 VA hearing aid evaluation note showed that the Veteran was not a candidate for hearing aids. The report indicated that audiometry testing showed normal to borderline-normal hearing thresholds in all test findings, except at 8000 Hertz (where a mild loss was noted bilaterally). Speech recognition scores were reported to be "excellent." A December 2002 VA hearing aid evaluation note shows that he was provided hearing aids. A November 2003 VA audiology evaluation note reports that the Veteran's hearing thresholds were essentially normal. The report of an April 2005 VA audio examination shows that the Veteran reported being exposed to acoustic trauma while in the military. He essentially denied post-service occupational noise exposure. Auditory examination showed the presence of right ear hearing loss, per 38 C.F.R. § 3.385. This was due to the speech recognition score of 80 percent. The examiner supplied a diagnosis of normal bilateral hearing sensitivity. The examiner commented that, since he exhibited hearing thresholds within normal limits in the course of the examination, it seemed less than likely that the Veteran sustained any permanent hearing loss as a result of his military noise exposure. A June 2005 VA outpatient nutritional clinic consult report includes deafness and sensorineural hearing loss among problems listed. The report of a January 2007 VA audio examination shows that the Veteran reported incurring acoustic trauma while in the military. He denied occupational and recreational noise exposure. Auditory examination showed the presence of right ear hearing loss, per 38 C.F.R. § 3.385. This was due to the speech recognition score of 92 percent. The examiner supplied a diagnosis of normal bilateral hearing sensitivity. In February 2009 the Board, in remanding this claim, found that medical evidence was of record suggesting that the Veteran had hearing loss (as defined by VA regulations) in his right ear. The Board referenced right ear speech recognition scores of 88 percent (March 1995) and 92 percent (January 2007). As such, a VA examination was to be conducted to ascertain the existence and etiology of the Veteran's claimed right ear hearing loss. This ordered VA examination took place in March 2009. The examiner opined that the Veteran did not have hearing loss, and that there was no "basis for this appeal." While the examiner specifically commented on some of the medical evidence of record, he did not comment on the speech recognition findings reported as part of the Board's February 2009. As such, the Board in August 2010, again remanded the claim so that an adequate medical opinion could be supplied. The VA examination ordered by the Board in August 2010 took place in September 2010. Review of this VA audio examination report shows that audiometry examination showed no right hearing loss for VA purposes. The audiologist, while the remand again pointed out the previously-mentioned speech recognitions findings of hearing loss for VA purposes, commented that "This Veteran has no hearing loss!" He, like the examiner in March 2009, failed to comment on these prior findings. Finally, the Board in June 2012, again remanded the Veteran's claim seeking service connection for right ear hearing loss. Again, the Board repeated the VA audio findings of March 1995 which showed a speech recognition score of 88 percent, and the January 2007 finding of 92 percent. This ordered examination was conducted in July 2012. Review of the July 2012 VA hearing loss examination shows that the examining audiologist conducted a comprehensive and exhaustive review of the Veteran's medical history, including, significantly, the March 1995, April 2005, and January 2007 VA speech recognition findings which all demonstrated the presence of speech recognition scores which demonstrated the presence of right ear hearing loss as defined in 38 C.F.R. § 3.385. She also commented on numerous specifically-identified audio findings, including speech recognition scores, which showed that hearing loss, as defined by VA regulations, was not present. Audiometry examination of the Veteran showed that the Veteran did not have right ear hearing loss as denied in 38 C.F.R. § 3.385. The audiologist opined that the Veteran's right ear hearing loss was not at least as likely as not caused by or a result of his military service. She observed that the Veteran had a history of in-service and post-service noise exposure. The examiner observed that the veteran had findings of normal hearing after his separation. In again observing that the examiner both reviewed, and specifically commented upon the Veteran's extensive medical history as pertaining to his hearing acuity, she concluded by stating, of particular probative note, that based on "all of the evidence reviewed" it was her opinion that any previous speech recognition score below 94 percent in the right ear was less likely than not related to the Veteran's military service or to represent any physiological hearing loss. She added that these findings were more likely related to behavioral variances. Analysis In addition to the negative medical opinion supplied by the VA audiologist in July 2012, the Board also recognizes that none of the audiometric findings from the Veteran's active service demonstrate the presence of right ear hearing loss, given that the threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley; see also 38 C.F.R. § 3.385. As for statutory presumptions, as above reported, service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1110 and 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a). Sensorineural hearing loss can be service-connected on such a basis. However, the first showing of post-service right ear sensorineural hearing loss was many years following the Veteran's discharge from service. Alternatively, when a chronic disease is not present during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology. Such evidence is lacking here. While throughout the course of his appeal the Veteran essentially contended that his claimed right ear hearing loss was directly attributable to in-service noise exposure, in the course of a March 1995 VA audio examination the Veteran provided a history of hearing loss for the past four or five years. In adjudicating a claim, including as to continuity of symptomatology (here, limited to the presence of sensorineural hearing loss versus, for example, conductive hearing loss), the Board must assess the competence and credibility of the veteran. See Buchanan, Washington, 19 Vet. App. at 368-69. The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Although the Veteran asserts that his current right ear hearing loss is related to service, he is not competent to provide an opinion requiring medical knowledge, such as a question of medical causation. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). He is competent to give evidence about what he experienced; for example, he is competent to report that he engaged in certain activities in service and currently experiences certain symptomatology. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, at 1337. However, such lack of contemporaneous evidence is for consideration in determining credibility. In this regard, the Board notes that the record is devoid of objective evidence of any right ear hearing loss until many after service. As such, the Board finds that any assertions by the Veteran as to possible etiology of his right ear hearing loss to be less than credible. In this case, the Veteran, while not currently having a right ear hearing loss disorder (see July 2012 VA audio examination), he did, as defined in 38 C.F.R. § 3.385, in the course of his appeal. See VA audio findings (i.e., speech recognition scores) dated in March 1995, April 2005, and January 2007. To this point, the Board notes the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The remaining question, therefore, is whether there is medical evidence of a relationship between any diagnosed right ear hearing loss, diagnosed in the course of the Veteran's appeal, and his military service. As above noted, the VA audiologist in July 2012 supplied a comprehensive opinion, which included supportive rationale, which essentially found that the Veteran did not have a right ear hearing loss disability which was at least as likely as not related to his military service. She also opined that any shown right ear hearing loss was "more likely related to behavioral variances" rather than military service. The Board notes that the Veteran has submitted no opinion to the contrary. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) [service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service]. In this case, as mentioned, the medical evidence does not show treatment or diagnosis of problems associated with right ear hearing loss until a significant number of years after service. Thus, the record is, in addition to not providing a showing of even abnormal right left ear hearing loss in-service, absent evidence of the in-service incurrence of a chronic right ear hearing loss disability for VA compensation purposes, per 38 C.F.R. § 3.385, evidence of sensorineural hearing loss within a year following service, evidence of continuity of symptomatology, and medical evidence of a nexus between service and current (or, in the course of the appeal; McClain) right ear hearing loss. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. ORDER Service connection for right ear hearing loss is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs