Citation Nr: 1329334	
Decision Date: 09/12/13    Archive Date: 09/20/13

DOCKET NO.  05-14 297	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, 
Nebraska


THE ISSUE

Entitlement to service connection for right ear hearing 
loss.


REPRESENTATION

Appellant represented by:	Nebraska Department of 
Veterans' Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

D. M. Casula, Counsel


INTRODUCTION

The Veteran had active service from July 1979 to July 1982.

This matter comes before the Board of Veterans' Appeals 
(Board) from a March 2005 rating decision of the above 
Regional Office (RO) of the Department of Veterans Affairs 
(VA) which, in pertinent part, denied service connection for 
bilateral hearing loss and for tinnitus.  

In July 2006 the Veteran testified at a Travel Board hearing 
before an Acting Veterans Law Judge.  Unfortunately, a 
transcript of that hearing could not be produced.  The 
Veteran was afforded a videoconference hearing in March 
2007.  A transcript from those proceedings is of record and 
has been associated with the claims folder.  The Acting 
Veterans Law Judge who conducted the hearings is no longer 
with the Board.  The Veteran was afforded the opportunity to 
testify at an additional hearing in accordance with 38 
C.F.R. § 20.707, but he declined. 

The Veteran's claims first came before the Board in May 
2007, at which time entitlement to service connection for 
bilateral hearing loss and for tinnitus was denied.  The 
Veteran appealed the May 2007 Board determination to the 
United States Court of Appeals for Veterans Claims (Court).  
In May 2008 the Court issued an order granting the parties' 
joint motion for remand, vacating the Board's decision, and 
remanding the case back to the Board for compliance with the 
joint motion. 

Accordingly, the claims came before the Board again in June 
2008, at which time they were remanded for additional 
development.  In April 2010 the Board issued another 
decision denying the Veteran's claims.  The Veteran once 
again appealed that determination to the Court, which, in 
October 2011, issued a single-judge Memorandum Decision 
vacating the Board's determination and remanding the claims 
to the Board for further development and adjudication. 

In March 2012, the Board remanded the Veteran's claims for 
further development.  Although a VA examination was 
conducted, the Board concluded that there had not been 
substantial compliance with the March 2012 remand.  See 
Stegall v. West, 11 Vet. App. 268 (1998).  In February 2013, 
the Board again remanded the Veteran's claims for further 
development, to include obtaining a VA examination and 
opinion.  In March 2013, the Veteran underwent a VA 
examination, which included the requested opinion.  Thus, 
there has been substantial compliance with the Board's 
remand directives.  Stegall v. West, supra.

Thereafter, by April 2013 rating decision, the AMC (Appeals 
Management Center) granted service connection for the 
Veteran's tinnitus, and by June 2013 rating decision, the 
AMC granted service connection for the Veteran's left ear 
hearing loss.  Those issues are no longer before the Board.  


FINDING OF FACT

The Veteran's right ear hearing loss was first shown many 
years after his active duty and has not been found by 
competent and credible evidence to be related thereto; right 
ear sensorineural hearing loss may not be presumed to be of 
service onset.


CONCLUSION OF LAW

Right ear hearing loss was not incurred in or aggravated by 
service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 
2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 
(2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits, as codified in pertinent part at 38 
U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 
3.159, 3.326(a).

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his representative of any information, and any 
medical or lay evidence, that is necessary to substantiate 
the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper 
notice from VA must inform the claimant of any information 
and evidence not of record (1) that is necessary to 
substantiate the claim; (2) that VA will seek to provide; 
and (3) that the claimant is expected to provide.  38 C.F.R. 
§ 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 
2008).  This notice must be provided prior to an initial 
decision on a claim by the RO.  Mayfield v. Nicholson, 444 
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. 
App. 112 (2004). 

The VCAA notice requirements apply to all five elements of a 
service connection claim:  (1) veteran status; (2) existence 
of disability; (3) connection between service and the 
disability; (4) degree of disability; and (5) effective date 
of benefits where a claim is granted.  Dingess v. Nicholson, 
19 Vet. App. 473, 484 (2006).

If complete notice is not provided until after the initial 
adjudication, such a timing error can be cured by subsequent 
legally adequate VCAA notice, followed by readjudication of 
the claim, as in a Statement of the Case (SOC) or 
Supplemental SOC (SSOC).  Moreover, where there is an 
uncured timing defect in the notice, subsequent action by 
the RO which provides the claimant a meaningful opportunity 
to participate in the processing of the claim can prevent 
any such defect from being prejudicial.  Mayfield v. 
Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett 
v. Nicholson, 20 Vet. App. 370, 376 (2006).

The United States Court of Appeals for the Federal Circuit 
(Federal Circuit) held that any error in VCAA notice should 
be presumed prejudicial, and that VA bears the burden of 
proving that such an error did not cause harm.  Sanders v. 
Nicholson, 487 F.3d 881 ( Fed. Cir. 2007).  However, the 
United States Supreme Court (Supreme Court) reversed that 
decision, finding it unlawful in light of 38 U.S.C.A. § 
7261(b)(2).  The Supreme Court held that - except for cases 
in which VA failed to meet the first requirement of 38 
C.F.R. § 3.159(b) by not informing the claimant of the 
information and evidence necessary to substantiate the claim 
- the burden of proving harmful error rests with the party 
raising the issue, the Federal Circuit's presumption of 
prejudicial error imposed an unreasonable evidentiary burden 
upon VA and encouraged abuse of the judicial process, and 
determinations on the issue of harmless error should be made 
on a case-by-case basis.   Shinseki v. Sanders, 129 S. Ct. 
1696 (2009). 

In this case, the VCAA duty to notify was satisfied by way 
of letters sent to the Veteran in October 2004 and December 
2004 that fully addressed the notice elements and was sent 
prior to the initial RO decision in this matter.  These 
letters informed the Veteran of what evidence was required 
to substantiate the claim and of his and VA's respective 
duties for obtaining evidence.  The Board also notes that in 
a letter dated in March 2006, the Veteran was advised of how 
disability ratings and effective dates are assigned.  See 
Dingess v. Nicholson, supra.  Moreover, he has not 
demonstrated any error in VCAA notice, and the presumption 
of prejudicial error as to such notice does not arise in 
this case.  See Sanders v. Nicholson, supra.  Thus, the 
Board concludes that all required notice has been given to 
the Veteran.  

Additionally, in July 2006, the Veteran was provided an 
opportunity to set forth his contentions during a hearing 
before the undersigned Veterans Law Judge.  In Bryant v. 
Shinseki, the Court held that 38 C.F.R. § 3.103(c)(2) 
requires that the RO Decision Review Officer or Veterans Law 
Judge who chairs a hearing t 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); see also 
Procopio v. Shinseki, 26 Vet. App. 76 (2012).  Here, during 
the July 2006 hearing, the undersigned Veterans Law Judge 
enumerated the issue on appeal, and information was 
solicited from the Veteran regarding the nature and 
circumstances of his right ear hearing loss.  Moreover, the 
hearing discussion did not reveal any evidence that might be 
available that had not been submitted.  Under these 
circumstances, nothing gave rise to the possibility that 
evidence had been overlooked with regard to the Veteran's 
claim for service connection for right ear hearing loss.  As 
such, the Board finds that, consistent with Bryant and 
Procopio, the undersigned Veterans Law Judge complied with 
the duties set forth in 38 C.F.R. 3.103(c)(2), and the Board 
may proceed to adjudicate the claim based on the current 
record.  

The Board also finds VA has satisfied its duty to assist the 
Veteran in the development of the claim.  VA has obtained 
all identified and available service and post-service 
treatment records for the Veteran.  Although the Veteran 
underwent several VA examination, these examinations were 
found to be inadequate.  However, with regard to the most 
recent VA examination in March 2013, the Board notes that 
this examination included a review of the claims folder and 
a history obtained from the Veteran, and examination 
findings were reported, along with diagnoses/opinions, which 
were supported in the record.  The March 2013 VA examination 
is therefore adequate for rating purposes.  See Barr v. 
Nicholson, 21 Vet. App. 303, 310-11 (2007).  It appears that 
all obtainable evidence identified by the Veteran relative 
to his claim has been obtained and associated with the 
claims folder, and neither he nor his representative has 
identified any other pertinent evidence, not already of 
record, which might be needed for a fair disposition of this 
appeal.  The Board concludes that no further notice or 
assistance is required to fulfill VA's duty to assist in the 
development of the claim.  Smith v. Gober, 14 Vet. App. 227 
(2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. 
Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 
supra.

The Board concludes that VA has satisfied its duty to assist 
the Veteran in apprising him as to the evidence needed, and 
in obtaining evidence pertinent to his claim under the VCAA.  
No useful purpose would be served in remanding this matter 
for yet more development.  Such a remand would result in 
unnecessarily imposing additional burdens on VA, with no 
additional benefit flowing to the Veteran.  The Court has 
held that such remands are to be avoided.  Sabonis v. Brown, 
6 Vet. App. 426, 430 (1994).

II. Factual Background

Service treatment records (STRs) show that on the Veteran's 
entrance examination in June 1979, an audiometry test 
revealed decibels of 15, 10, 10, 5, and 5, in the right ear 
at the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz.  
An audiometric examination in February 1981 revealed 
decibels of 10, 10, 10, 0, and what appears to be 20, in the 
right ear, at the frequencies of 500, 1000, 2000, 3000 and 
4000 Hertz.  Results of 15, 15, 15, 5, and 20 were also 
recorded at the same frequencies.  On separation examination 
in July 1982, audiometric testing revealed decibels of 15, 
10, 5, 0 and 10 in the right ear at 500, 1000, 2000, 3000 
and 4000 Hertz.  

On a VA examination in January 2005, the Veteran reported 
being exposed to loud noise during his active service, such 
as from artillery and explosions, and he denied having any 
recreational noise exposure.  The audiological examination, 
which included a pure tone threshold test and a Maryland 
(CNC) word list test, generated the following scores:  for 
the pure tone threshold test in the right ear, decibels of 
15, 15, 20, 20, and 20 were reported for frequencies of 500, 
1000, 2000, 3000 and 4000 Hertz.  The Maryland (CNC) word 
list speech recognition test demonstrated 92 percent 
discrimination for the right ear.  The diagnosis was mild 
sensorineural hearing loss in the right ear.  The 
audiologist opined that it was not likely that the Veteran's 
hearing loss was a direct result of his service because he 
had no hearing problems in 1982 and no complaints for many 
years thereafter. 

In March 2007, the Veteran testified that he had experienced 
noise exposure during service in the form of bombs and other 
explosions, aircraft and tanks.  He indicated that he did 
not wear hearing protection, had only a little hearing loss 
when he was in service and no ringing in the ears until 
after his discharge from service.  He testified that his 
tinnitus had commenced a few months after his discharge from 
service. 

On a VA examination in October 2008, the examiner opined 
that the Veteran's hearing loss was less likely as not 
related to service, essentially based on rationale that 
there was normal hearing sensitivity at separation in 1982.  
An August 2009 VA audiological opinion was obtained after 
the 1985 VA medical records were associated with the claims 
folder, and the VA examiner stated that the additional 
evidence did not change the prior opinion. 

On a VA DBQ (disability benefits questionnaire) examination 
in April 2012, the diagnoses included right ear, normal 
hearing.  The examiner opined that the Veteran's hearing 
loss was not at least as likely as caused by or related to 
an event in military service.  For rationale, the examiner 
indicated that right ear hearing was normal.  The examiner 
also noted that that opinion may change when the claims 
folder became available.  In the June 2012 addendum, after 
reviewing the claims folder, the examiner opined that 
because the Veteran had no ratable hearing loss at the time 
of separation from service, his hearing loss was not due to 
military noise exposure.  The examiner also noted that the 
Veteran's entrance and exit audiograms both revealed normal 
hearing, with no significant change between the tests. 

On a VA DBQ examination in March 2013, there was no current 
right ear hearing loss disability, for VA purposes, shown on 
either audiological testing or the Maryland CNC Test.  The 
diagnoses included sensorineural hearing loss, right ear, in 
the frequency range of 6000 Hertz or higher frequencies; and 
significant changes in hearing thresholds in service, in the 
right ear.  For rationale, the examiner noted that the one 
threshold that shifted significantly from entrance to exit 
was at 6000 Hertz in the left ear.  The examiner indicated 
that although the Veteran did not have a ratable hearing 
loss at the time of separation, his left ear hearing had 
gotten much worse than 10 decibels from his entrance to his 
exit physicals at least at one of the tested frequencies.  
The examiner noted that according to the literature, one can 
expect the threshold change to vary from test to test for as 
much as 10 decibels, and that for a threshold shift to be 
considered significant, it must change more than 10 
decibels.  The examiner opined that since the Veteran's left 
ear hearing had gotten worse, more than 10 decibels during 
military service, it is likely as not that the threshold 
shift was from military noise exposure.  The examiner opined 
that since the right ear had not shifted more than 10 
decibels at any of the tested frequencies, that the right 
ear had not incurred enough military noise exposure as to 
cause a significant shift in hearing thresholds.  The 
examiner further opined that it was not as likely as not 
that the Veteran's right ear had significantly been 
aggravated by military noise.  The examiner acknowledged, in 
addressing the 2013 VA examination and the past VA 
examinations from 2005 and 2012, that the Veteran only had a 
ratable loss by VA definition at the 2005 examination by 
having a word recognition PB max score of 92% in the right 
ear.  The examiner reiterated the opinion that despite no 
ratable loss on the current examination, it was at least as 
likely as not that hearing aggravation did occur in the left 
ear, causing a shift in the threshold, yet there was no 
shift or permanent aggravation to the right ear hearing.  

III. Analysis

Service connection may be granted for disability which is 
the result of disease or injury incurred in or aggravated by 
service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). 

If a chronic disease is shown in service, subsequent 
manifestations of the same chronic disease at any later 
date, however remote, may be service connected, unless 
clearly attributable to intercurrent causes.  38 C.F.R. § 
3.303(b).  If a condition noted during service is not shown 
to be chronic, then generally a showing of continuity of 
symptomatology after service is required for service 
connection if the disability is one that is listed in 38 
C.F.R. § 3.309(a).  The Federal Circuit recently held that 
the theory of continuity of symptomatology under 38 C.F.R. 
§ 3.303(b) does not apply to any condition that has not been 
recognized as chronic under 38 C.F.R. § 3.309(a).  See 
Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  The 
Board notes that sensorineural hearing loss is considered an 
"organic disease of the nervous system" under 38 C.F.R. § 
3.309(a) and may be subject to service connection based on 
continuity of symptomatology. 

For certain chronic disorders, including sensorineural 
hearing loss, service connection may be granted on a 
presumptive basis if the disease becomes manifest to a 
compensable degree within one year following separation from 
service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 
38 C.F.R. §§ 3.307, 3.309.

In order to prevail on the issue of service connection, 
there must be medical evidence of a (1) current disability; 
(2) medical, or in certain circumstances, lay evidence of 
in-service incurrence or aggravation of a disease or injury; 
and (3) medical evidence of a nexus between the claimed in-
service disease or injury and the present disease or injury.  
Hickson v. West, 12 Vet. App. 247, 253 (1999).  

The existence of a current disability is the cornerstone of 
a claim for VA disability compensation.  Brammer  v. 
Derwinski, 3 Vet. App. 223, 225 (1992).  The Court has held 
that the presence of a chronic disability at any time during 
the claim process can justify a grant of service connection, 
even where the most recent diagnosis is negative.  McClain 
v. Nicholson, 21 Vet. App. 319 (2007). 

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 at 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 Veteran essentially contends he should be entitled to 
service connection for right ear hearing loss, based on his 
reported exposure to excessive noise during service.  He 
contends that he had hearing loss during service.  The 
record reflects that the Veteran's reported exposure to 
excessive noise/acoustic trauma in service has been 
conceded, and the Board has no reason to discount this 
finding.  In that regard, service connection has been 
granted for tinnitus and for left ear hearing loss, 
essentially based on his exposure to excessive noise in 
service and the supporting VA medical opinion provided in 
March 2013.  

STRs show no report or finding of right ear hearing loss.  
However, the lack of any in-service evidence showing hearing 
loss consistent with the regulatory threshold requirements 
for hearing disability (38 C.F.R. § 3.385 ) is not fatal to 
the claim.  Applicable laws and regulations do not require 
in-service complaints of, or treatment for, hearing loss in 
order to establish service connection.  Ledford v. 
Derwinski, 3 Vet. App. 87 (1992).  Instead, where there is 
no evidence of a hearing disability until many years after 
separation from service, "[i]f evidence should sufficiently 
demonstrate a medical relationship between the veteran's in-
service exposure to loud noise and his current disability, 
it would follow that the veteran incurred an injury in 
service."  Hensley v. Brown, 5 Vet. App. 155, 160 (1993). 

The Board acknowledges that a hearing loss disability as 
defined for VA purposes was not demonstrated during the 
April 2012 or the March 2013 VA audiological examinations; 
however, findings referenced in the VA examination from 
January 2005 are sufficient to constitute a right hearing 
loss disability, pursuant to 38 C.F.R. § 3.385, based on a 
speech recognition score of 92 percent using the Maryland 
CNC Test.  Because there was a right ear hearing loss 
disability shown during the claim process, there is 
competent evidence of a current disability.  See Brammer v. 
Derwinski, supra; see also McClain v. Nicholson, supra. 

What is missing from the record is competent evidence 
showing that the Veteran's right ear hearing loss may be 
causally related to service.  38 C.F.R. § 3.303.  On prior 
VA examinations in 2005, 2009, and 2012, the examiners 
basically opined that the Veteran's hearing loss was not 
related to service because there was no showing of hearing 
loss at the time of his separation from service.  As noted 
above, in Hensley v. Brown, the Court held that when 
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.  See Hensley v. 
Brown, supra.  

Significantly, it is noted that the Veteran is service 
connected for left ear hearing loss based on an identical 
theory for which he contends that service connection is 
warranted for right ear hearing loss.  It is pointed out, 
however, that, as explained by the VA examiner in March 
2013, the audiometric tests during service reflect that his 
left ear showed a more significant threshold shift (greater 
than 10 decibels) than the right ear, from the time of 
entrance into service to the time of separation from 
service.  Further, in March 2013, the VA examiner 
essentially opined that since the Veteran's right ear 
hearing had not shifted more than 10 decibels at any of the 
tested frequencies, the right ear had not incurred enough 
military noise exposure to cause a significant shift in 
hearing thresholds, and that it was not as likely as not 
that the Veteran's right ear hearing had significantly been 
aggravated by military noise.  Although the VA examiner's 
opinion regarding the Veteran's right ear hearing loss was 
essentially based on the fact there was not a significant 
enough puretone threshold shift in service to show that his 
noise exposure affected right ear hearing acuity, the Board 
notes that this rationale and explanation provided by the VA 
examiner explains why the lack of a significant threshold 
shift in the right ear hearing loss in service necessitates 
the finding that current right ear hearing loss is not 
related to noise exposure in service.  Thus, the Board finds 
the VA examiner's opinion in 2013 to be probative and 
persuasive regarding the matter of whether the Veteran's 
right ear hearing loss may be related to service.

Service connection on a presumptive basis for sensorineural 
hearing loss is also not warranted, as there is no evidence 
of the disorder to a compensable degree within one year of 
service discharge.  Rather, sensorineural hearing loss is 
not shown at all until VA examination in 2005, many years 
after service discharge.

Full consideration has been given to the Veteran's 
assertions that he has right ear hearing loss related to 
service.  While he is competent to report that he has 
hearing loss and that he had hearing loss in service, he has 
not provided competent medical evidence to support a finding 
of a nexus between current hearing loss disability and noise 
exposure 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 
issue in this case, the relationship between hearing loss 
disability and prior in-service noise exposure, falls 
outside the realm of common knowledge of a lay person.  See 
Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) 
(lay persons not competent to diagnose cancer).  Further, 
hearing loss as it relates to meeting the requirements of 38 
C.F.R. § 3.385 is not the type of condition that is readily 
amenable to mere lay diagnosis, as the evidence shows that 
audiometric and word recognition testing is needed to 
properly assess and diagnose the disorder.  See Davidson v. 
Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. 
Nicholson, supra; Woehlaert v. Nicholson, 21 Vet. App. 456, 
462 (2007).  That is, although the Board readily 
acknowledges that the Veteran is competent to report 
diminished auditory acuity, there is no indication that the 
Veteran is competent to provide the sort of objective 
findings required by 38 C.F.R. § 3.385 or to link hearing 
loss disability to in-service noise exposure. 

Further, and with regard to the lengthy gap between service 
separation (1982) and the first diagnosis of a right hearing 
loss disability (2005), the Board notes that although the 
Veteran reported having hearing loss in service, he has not 
indicated that he has had ongoing hearing problems since 
service.  He has not claimed a continuity of symptoms since 
service or continuity of hearing loss since service.  In 
addition, normal medical findings at the time of separation 
from service, as well as the absence of any medical records 
of a diagnosis or treatment for many years after service is 
probative evidence against the claim.  See Mense v. 
Derwinski, 1 Vet. App. 354, 356 (affirming Board where it 
found that veteran failed to account for the lengthy time 
period after service for which there was no clinical 
documentation of low back condition); see also Maxson v. 
Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (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).  Thus, because the Veteran has not alleged 
continuity of symptoms since service, and the fact that the 
most recent VA examiner examined the Veteran and found that 
right ear hearing loss was not due to service, based on 
audiometric testing in service, the Board therefore 
concludes that service connection for right ear hearing loss 
is not warranted based on continuity of symptomatology.

The preponderance of the evidence is therefore against the 
claim, the benefit-of-the-doubt rule does not apply, and the 
claim for service connection for right ear hearing loss must 
be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; 
Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 


ORDER

Service connection for right ear hearing loss is denied.



____________________________________________
BARBARA B. COPELAND 
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs