Citation Nr: 1327558 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 08-25 055 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from June 1973 to October 1989. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran attended a hearing before the undersigned Veterans Law Judge in February 2010. This matter was previously before the Board in May 2010 and June 2011 and was remanded to the agency of original jurisdiction (AOJ) for further development. In the May 2010 Board decision, the Board also granted service connection for tinnitus. In the June 2011 Board decision, the Board denied service connection for right ear hearing loss. The Board also notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. As a final preliminary matter, the Board points out that medical evidence was received from the Rush Medical Group in February 2012, following the January 2012 supplemental statement of the case. The Veteran has not waived initial RO consideration of the evidence. However, no further RO action in this regard is required. Although this evidence contains information pertaining to the Veteran's claimed left ear hearing loss, it was duplicative of evidence already associated with the claims file and previously reviewed by the AOJ. As this evidence has no bearing on the disposition of this matter, the evidence does not constitute additional, relevant evidence, and a remand for RO consideration of the evidence is unnecessary. See 38 C.F.R. §§ 19.37, 20.1304 (2012). FINDING OF FACT The evidence of record does not show that the Veteran's left ear hearing loss is related to his active military service. CONCLUSION OF LAW The criteria for the establishment of service connection for left ear hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information regarding the disability rating and effective date for the award of benefits if service connection is awarded. Id. at 486. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. The U.S. Court of Appeals for the Federal Circuit previously held that any errors in notice required under the VCAA should be presumed to be prejudicial to the claimant unless VA shows that the error did not affect the essential fairness of the adjudication. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Under Sanders, VA bore the burden of proving that such an error did not cause harm. Id. In the case Shinseki v. Sanders, 129 S.Ct. 1696 (2009), however, the U.S. Supreme Court held that the Federal Circuit's blanket presumption of prejudicial error in all cases imposed an unreasonable evidentiary burden upon VA. Rather, in Shinseki v. Sanders, the Supreme Court suggested that determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. Id. As such, in conformance with the precedents set forth above, on appellate review the Board must consider, on a case-by-case basis, whether any potential VCAA notice errors are prejudicial to the claimant. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a November 2006 letter, sent prior to the initial unfavorable decision issued in June 2007, advised the Veteran of the evidence and information necessary to substantiate his service connection claim, as well as his and VA's respective responsibilities in obtaining such evidence and information. The November 2006 letter also included notice of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and VA has complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). VA has a duty to assist the Veteran in developing his claim, which includes assisting the Veteran in obtaining any outstanding records of identified VA or private medical treatment relevant to his claim, and affording him an examination when appropriate. Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA, Social Security Administration (SSA) records and private treatment records (including from HC Watkins Hospital) have been obtained and considered. Per the directives of the prior Board remands, service treatment records from Dothan, Alabama have been associated with the claims file. Additionally, private medical records from Rush Medical Group, South East Alabama Medical Center, Dr. McHenry at Quitman Hospital and Sun Beam-Oster (previously Jarden Consumer Solutions) have also been associated with the claims file. The AOJ also informed the Veteran of the opportunity to identify treatment records, including for his hepatitis C treatment, in a June 2011 letter. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. Therefore, the Board finds that VA has met its duty to assist the Veteran in obtaining relevant records. In addition, the Veteran was afforded VA medical examinations in November 2009, August 2010 and November 2011 (also per prior Board remand instructions) regarding his claim. The VA examiners provided specific findings referable to the Veteran's alleged left ear hearing loss sufficient for the Board to adjudicate such claims. The Board notes that during his February 2010 Board hearing the Veteran indicated dissatisfaction with the way his hearing was tested by VA. The Court has held that VA's policy of conducting all audiometry testing of hearing loss claimants in a sound-controlled room is valid. The Court found that there was no expert medical evidence demonstrating that an audiometry test conducted in a sound-controlled room produces inaccurate, misleading, or clinically unacceptable test results. Moreover, there was no evidence of the existence of any alternative testing method available. It was also found that an audiologist must provide a description of the functional effects caused by the hearing loss disability. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). The audiologist who conducted the November 2011 VA examiner determined that the Veteran had no functional hearing on the left. This was sufficient to comply with the applicable VA policies. See Martinak, 21 Vet. App. at 455 (VA audiologist's indication in a report that the Veteran's hearing loss affected his ability to sleep was sufficient to comply with requirements of VA's own internal guidance documents that VA audiologists describe the effects of a hearing disability on occupational functioning and daily activities). Also of record and considered in connection with the appeal is the transcript of the February 2010 Board videoconference hearing, along with various statements by the Veteran. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, the undersigned Veterans Law Judge identified the issue on appeal and solicited the Veteran to identify evidence relevant to the claim. The Veteran reported treatment from the VA Medical Center (VAMC) and treatment with various private medical providers. Those records are associated with the claims file. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claim decided herein. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. The Board finds that no additional RO action to further develop the record in connection with the claim, prior to appellate consideration, is required. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Service Connection Law Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In some cases, service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Inasmuch as the Veteran does not have a disease recognized as chronic under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology are inapplicable. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The determination of whether a Veteran has a ratable hearing loss "disability" is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a disability (for VA purposes) when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. "[W]hen audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service". Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Court explained that the threshold for normal hearing is from 0 to 20 decibels and that higher threshold levels indicate some degree of hearing loss. Hensley, 5 Vet. App. at 157. The Court further opined that 38 C.F.R. § 3.385 operates only to establish when hearing loss can be service connected. Id. at 159. The Court also found that, regardless of when the criteria of 38 C.F.R. § 3.385 are met; a determination must be made as to whether the hearing loss was incurred in or aggravated by service. III. Factual Background The Veteran contends that he has left ear hearing loss due to service. He reported noise exposure in service, including from the rifle range, heavy equipment, artillery explosions, generators and aircrafts. In the February 2010 Board hearing, the Board conceded that the Veteran had in-service noise exposure. Service treatment records generally do not document any complaints of, or treatment for, hearing loss, other than an October 1989 report of medical history wherein the Veteran indicated hearing loss. However, an August 1989 hearing conservation data sheet documents findings that did not reach the level of a "disability" under 38 C.F.R. § 3.385. For over a year following service, the evidence of record does not document complaints of, or treatment for, hearing loss. An August 1993 Sunbeam-Oster private medical record documents that the Veteran underwent a hearing test in November 1992. The letter informed the Veteran that the Veteran's hearing was "below average and should be evaluated further...(26 to 50 db ad 3000, 4000 and/or 60 Hz)". The November 1992 audiometry findings indicated a maximum finding of 20 decibels for the left ear (at 6000 Hz) and 25 decibels for the right ear (at 8000 Hz). A September 13, 2006 VA medical record documents that the Veteran had "sudden onset of left ear hearing loss 2 days ago. He was watching TV...noted loss of hearing." The VA medical provider diagnosed him with sudden onset hearing loss with tinnitus. Subsequent VA and private medical records noted continued treatment for left sided sensorineural hearing loss, but generally did not provide any opinions as to the etiology of the left ear hearing loss. However, an October 2006 private medical record from the Rush Medical Group documents that the Veteran underwent treatment for left ear hearing loss, "which began on 9/11/06 on an acute basis." Dr. P. Tinsley noted that the Veteran had a history of noise exposure, including machinery, hunting and exposure to gun shots. The private medical provider noted that the Veteran had a "marked elevation of his triglycerides as well as Cholesterol...have hepatic dysfunction". In November 2009, the Veteran underwent a VA examination, which included a review of the claims file. The VA examiner noted the reported in-service and post service noise exposure. The examiner found that the right ear was within normal limits, but that the left ear had severe to profound sensorineural hearing loss. The examiner noted that the Veteran's hearing was "essentially normal on August 3, 1989. He experience a sudden, severe hearing loss in his left ear on September 11, 2006 which is due to an unknown cause but is not caused by or a result of noise exposure in the military." The November 2009 VA examiner provided an addendum opinion in July 2010. The VA examiner explained that the etiology of the Veteran's hearing loss was a medical issue, which needed to be resolved by a physician. In August 2010, the Veteran underwent a VA examination by a VA physician. The examiner noted the Veteran's history of sudden, post-service haring loss in 2006 and subsequent treatment for high lipids. The VA examiner found sudden neurosensory hearing loss in the left ear, and explained that such "episodes are commonly associated with vascular insufficiency to the cochlea, acute metabolic changes, polycythemia, hyperlipidemia, and autoimmune abnormalities. " The examiner found that it was "absolutely impossible to tell which of these may have been responsible for...hearing loss...without reviewing the records would be mere speculation." The August 2010 VA examiner subsequently provided an August 2010 addendum opinion, following review of the claims file, and noting that a review of the Veteran's service record would provide a more definitive etiology. The examiner again noted that "a sudden neurosensory hearing loss...is not secondary to previous trauma." Rather, the examiner again noted it was almost always secondary to vascular cochlear insufficiency or autoimmune abnormalities. The examiner found that the Veteran's "sudden neurosensory hearing loss was not associated with any previous military trauma or incident." The examiner further noted that no specific studies had been performed to delineate the cause of it, such as autoimmune studies. The examiner noted that hyperlipidemia was identified and could be very likely caused, but that it cannot be stated specifically as the cause. The examiner reiterated that "I cannot associate this sudden hearing loss with anything other than 1 of the metabolic, vascular or autoimmune anomalies which do occur and cause sudden neurosensory hearing loss." In November 2011, the August 2010 VA examiner provided another VA examination report. The examiner noted that he had again examined the Veteran and reviewed the record. The examiner noted that the Veteran had some increased cholesterol levels in service and a motorcycle accident, as well as that he had taken interferon treatments for hepatitis C. In November 2011, the VA examiner noted that the Veteran's August 1989 service treatment record documented that the Veteran had a "high cholesterol count which was at the upper limits of normal." The examiner also reported the Veteran's claim that his increased lipids caused his hearing loss. In November 2011, the VA examiner reiterated that "sudden neurosensory hearing loss can be caused by vasospasm, increased lipids, autoimmune disorders and trauma. Trauma is ruled out in this case because there was no trauma at the time of the hearing loss." The examiner noted that the most frequent cause of hearing loss was vasospasm and that the second most frequent was autoimmune, with the other causes being secondary, including lipidemia. In November 2011, the VA examiner found that "I cannot state with absolute certainty the etiology in this case. Any...choices mentioned above would be possible." The examiner noted that the Veteran had a lipid increase, but that many people with hyperlipidemia without any type of hearing loss. The examiner again noted that the most common causes were sudden vascular occlusion secondary to spasm and to autoimmune cochlear disease. The examiner also noted that there was a "possibility that the lipids could cause the hearing loss but that would be mere speculation on my part." The VA examiner also provided another addendum opinion (in November 2011), noting that the audiometric evaluation helped confirm the statement that the Veteran's hearing loss was not secondary to acoustic trauma in the service. The examiner noted the normal right ear and found that it would be extremely unusual to have unilateral acoustic trauma, as well as the total loss of hearing in the left ear. The examiner found that the audiometric examination reinforced his previous statement that the left ear hearing loss was associated with sudden neurosensory hearing loss and was not due to military acoustic trauma or noise exposure. The Board finds that the original VA examination report, coupled with the addendums are sufficient detail so that the Board can perform a fully informed evaluation of the claim. IV. Analysis The Board initially notes that the Veteran has a current diagnosis of left ear hearing loss, meeting the first criterion to establish service connection, that is a current disability. His exposure to noise in service has been conceded, hence the second element of service connection is established. However, the Board finds that the Veteran does not meet the third criteria for service connection, that is a link or nexus between the current diagnosis and the in-service disease or injury. As previously noted, VA has conceded that the Veteran had noise exposure in service. However, none of the medical evidence of record established that the Veteran's current left ear hearing loss developed in service or is etiologically related to service. As noted, the third element necessary to establish service connection is a nexus, or link, between the current disability and the in-service disease or injury. The evidence is not in equipoise and weighs against a grant of service connection. There are multiple opinions in this case that show that the Veteran's hearing loss in his left ear is caused by something other than his exposure to noise in service. As noted above, much of the evidence is against such a claims. Dr. P. Tinsley, Jr. opined in October 2006 that the Veteran's hearing loss was secondary to his elevated cholesterol and triglycerides. A VA examiner opined that the left ear hearing loss was not caused by the Veteran's noise exposure in service, that the etiology of the hearing loss was a medical issue, and repeatedly found that the Veteran's left ear hearing loss was not due to noise exposure in service. The VA examiner explained that sudden neurosensory hearing loss, such as the Veteran's, "can be caused by vasospasm, increased lipids, autoimmune disorders and trauma. Trauma is ruled out in this case because there was no trauma at the time of the hearing loss." Regarding secondary service connection, the VA examiner specifically stated that the Veteran's hearing loss was not secondary to acoustic trauma in the service, noting the Veteran's normal right ear and reasoning that it would be extremely unusual to have unilateral acoustic trauma, as well as the total loss of hearing in the left ear. Accordingly, there is no competent medical evidence of nexus between the current disability and any noise exposure in service. The Veteran alternatively contends that he had high cholesterol and lipids in service and that service connection for left ear hearing loss should be granted based on such findings. The Board initially notes that the service treatment records do not document findings of regarding the Veteran's lipid levels in service. Furthermore, the Veteran is not service-connected for either high cholesterol or high lipids levels/hyperlipidemia. The Board notes that hyperlipidemia is a general term for elevated concentrations of any or all of the lipids in plasma. See Dorland's Illustrated Medical Dictionary 833 (30th ed. 2003). Service connection cannot be granted as secondary to non-service-connected disorders. 38 C.F.R. § 3.310. Moreover, diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are laboratory results and are not, in and of themselves, disabilities. See Schedule for Rating Disabilities; Endocrine System Disabilities, 61 Fed. Reg. 20,440 (May 7, 1996). The term disability, as used for VA purposes, refers to a condition resulting in an impairment of earning capacity. See Allen v. Brown, 7 Vet. App. 439 (1995). Hyperlipidemia and high cholesterol does not necessarily cause any impairment of earning capacity, and is not a disease entity. As such, service connection could not be granted for such disorders. Additionally, the only medical evidence to clearly tie the Veteran's left ear hearing loss to his elevated cholesterol and triglycerides is the October 2006 private medical record of Dr. P. Tinsley (with the Rush Medical Group). However, Dr. Tinsley actually found that the Veteran had "hepatic dysfunction and most likely this may be one reason it [triglycerides and cholesterol] is so high." The Veteran is also not service-connected for hepatic dysfunction. Service connection secondary to hepatic dysfunction is thus also not possible. The only other medical opinion on the etiology of the left ear hearing loss was made by the August 2010 VA examiner (in August 2010 and November 2011). That VA examiner found that the hearing loss, such as the Veteran's, could be due to vasospasm, autoimmune disorders, increased lipids and trauma. That VA examiner, however, was unable to determine with absolute certainty the etiology in this case, without resort to speculation. The award of benefits may not be predicated on a resort to speculation or remote possibility. 38 C.F.R. § 3.102; see Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (a letter from a physician indicating that veteran's death "may or may not" have been averted if medical personnel could have effectively intubated the veteran held to be speculative); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (physician's statement that the veteran may have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis deemed speculative). Additionally, the service connection has not been established for the disorders that the August 2010 VA examiner found could be the cause of the Veteran's left ear hearing loss. As previously noted, the Veteran cannot be service-connected for laboratory results such as hyperlipidemia and the Veteran is not service-connected for a hepatic disorder (which Dr. P. Tinsley found to be the probable cause of the Veteran's high lipids). The only evidence of record supportive of the Veteran's claim is his contention that he has left ear hearing loss due to his noise exposure in service or, alternatively, due to his claimed high lipids levels in service (which is not evidenced in the record) and/or his high cholesterol findings in service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, i.e., whether the Veteran has a medically diagnosed left ear hearing loss etiologically related to service, such questions falls outside the realm of common knowledge of a lay person as they involve a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). "Competent medical evidence" is evidence that is provided by a person qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). Finally, the presumption of service connection for hearing loss does not apply here as hearing loss was not demonstrated either in service (none reported on separation examination) nor until finding reported in an August 1993 Sunbeam-Oster private medical record which showed that testing in November 1992 showed below average hearing. The audiometric findings in 1992-1993 did not meet the VA definition for hearing loss at that time. The Veteran has admitted and repeatedly reported that his hearing loss began suddenly, in September 2006. VA and private medical records similarly document that the Veteran's hearing loss began in September 2006, over a decade following the Veteran's discharge from service. The findings of the November 1992 private audiometry evaluation documents that the Veteran's hearing failed to meet the level of a disability under 38 C.F.R. § 3.385 at the time of his testing, three years following his discharge from service. In this regard, there is no credible and competent evidence that the Veteran has a left ear hearing loss disability under 38 C.F.R. § 3.385 that began in service or within a year of his discharge from service. In addition to the lack of any indication of a left ear hearing loss during service, other than an August 1989 report of medical history notation of decreased hearing, there is no documentation of complaints of, or treatment for, left ear hearing loss in service or for years following separation from service. The first indication of a left ear hearing loss disability under 38 C.F.R. § 3.385 did not occur until September 2006. As a hearing loss was not demonstrated within one year of service, the presumption under 38 C.F.R. §3.309 does not apply. The weight of the probative evidence demonstrates that the Veteran does not have current left ear hearing loss related to any aspect of service or a service-connected disability. As the preponderance of the evidence is against this claim, the benefit of the doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for left ear hearing loss is denied. ORDER Service connection for left ear hearing loss is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs