Citation Nr: 0814342 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 05-29 940 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran served on active duty for training from June 1964 to December 1964 and was a member of the United States Army Reserves until October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. FINDINGS OF FACT 1. Bilateral hearing loss is not attributable to service. 2. Bilateral tinnitus is not attributable to service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by service. 38 U.S.C.A. §§ 101, 106, 1110 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304, 3.385 (2007). 2. Bilateral tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 101, 106, 1101, 1110 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) With respect to the claimant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Prior to the initial adjudication of the claimant's claim, VCAA letters were sent in December 2003 and March 2004 which fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The claimant was aware that it was ultimately the claimant's responsibility to give VA any evidence pertaining to the claim. The VCAA letters told the claimant to provide any relevant evidence in the claimant's possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). ). In particular, the VCAA notification: (1) informed the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) informed the claimant about the information and evidence that VA will seek to provide; (3) informed the claimant about the information and evidence that the claimant is expected to provide; and (4) requested that the claimant provide any evidence in his possession that pertains to the claims, or something to the effect that the claimant should "give us everything you've got pertaining to your claim." See Pelegrini II. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a statement of the case (SOC) or supplemental statement of the case (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, No. 2007-7130 (Fed. Cir. Sept 17, 2007) (Mayfield III). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See Mayfield III, (citing Mayfield v. Nicholson, 444 F.3d at 1328, 1333- 34). In any event, the Board finds that any deficiency in the notice to the claimant or the timing of these notices is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board erred by relying on various post-decisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the claimant, the United States Court of Appeals for Veterans Claims (Court) found that the evidence established that the claimant was afforded a meaningful opportunity to participate in the adjudication of the claim, and found that the error was harmless, as the Board has done in this case.) In Sanders v. Nicholson, 487 F. 3d 881 (2007), the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant, see Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F.3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores v. Peake, supra. If any notice deficiency is present in this case, the Board finds that the presumption of prejudice on VA's part has been rebutted in this case by the following: (1) based on the communications sent to the veteran over the course of this appeal, the claimant clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on the claimant's contentions as well as the communications provided to the claimant by VA, it is reasonable to expect that the claimant understands what was needed to prevail. See Sanders; see also Simmons v. Nicholson, 487 F. 3d 892 (2007). VA also fulfilled its duty to obtain all relevant evidence with respect to the issue on appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claimant's service medical records, VA medical treatment records, and identified private medical records have been obtained, to the extent available, as discussed below. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. The claimant was also afforded a VA examination in June 2004. 38 C.F.R. § 3.159(c)(4). The records satisfy 38 C.F.R. § 3.326. The veteran was also sent a letter regarding the appropriate disability rating or effective date to be assigned in March 2006. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. This includes injuries or diseases incurred during active duty for training (ADT), or injuries suffered during inactive duty training (IDT). See 38 U.S.C.A. §§ 101(24), 106. Reserve and National Guard service generally means ADT and IDT. ADT is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training that each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training such as in the instant case. IDT includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year. These drills are deemed to be part-time training. Generally, an individual who has only Reserve or National Guard service (ADT or IDT with no active duty) is not a veteran as legally defined. In the service connection context, for example, this means that the presumption of soundness upon entry into service and the presumptive service connection provisions of 38 C.F.R. § 3.307, applicable to active duty, would not apply to ADT or IDT. 38 U.S.C.A. §§ 1111, 1112, 1137; 38 C.F.R. § 3.307. Thus, while organic disease of the nervous system such as sensorineural hearing loss will be presumed to have been incurred in or aggravated by active service if it had become manifest to a degree of 10 percent or more within one year of the veteran's separation from service, such is inapplicable in the instant case since the veteran's Reserve service consisted of ADT and IADT. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Hearing loss disability is defined by regulation. 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, 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. Since November 1, 1967, audiometric results in service department records have been reported in standards set forth by the International Standards Organization (ISO)-American National Standards Institute (ANSI). Service department audiometric charts dated on and after November 1, 1967 are presumed to be in ISO-ANSI units unless otherwise specified, while such charts in VA medical records dated after June 30, 1966, are similarly presumed to be in ISO-ANSI units. In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses below. VA regulation provides that, with chronic disease shown as such in service (or within an applicable presumptive period under section 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of an evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 38 C.F.R. § 3.303(b). In addition, service connection may 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). The Court has held that "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court, in Hensley, 5 Vet. App. 155 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the veteran's service and his current disability. The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d) which provides that service connection may 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). A claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the inservice injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). The veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Thus, while the veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno. Therefore, he cannot provide a competent opinion regarding diagnosis and causation. However, the Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court indicated that varicose veins was a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." Thus, the veteran's lay testimony regarding varicose vein symptomatology in service represented competent evidence. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that 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 (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See Barr. In this case, the veteran is competent to report that he has difficulty hearing. However, he is not competent to report that he has a certain level of hearing impairment as measured in Hertz nor is he competent to provide an etiological nexus between any current hearing impairment and service as such assessments are not simple in nature. See Jandreau. Similarly, while the veteran has submitted two lay statements from R.B. and J.D., which attest to inservice noise exposure and the lack of ear protection and that the veteran has had difficulty hearing since his service days, these individuals are not competent to provide an etiological nexus between any current hearing loss or tinnitus and service. The veteran served on active duty for training from June 1964 to December 1964. His enlistment examination included an audiometric evaluation. Puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -10(5) -10(0) -10(0) -10(0) -10(-5) LEFT 10(25) -5(5) -5(5) -5(5) -10(-5) The veteran denied having any ear problems and the physical examination of the ear was normal. In November 1964, the veteran was examined. Puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0(15) 0(10) 0(10) N/A 0(5) LEFT 0(15) 0(10) 0(10) N/A 0(5) The veteran denied having any ear problems and the physical examination of the ear was normal. An audiogram was performed in May 1968 during the veteran's Reserve duty. However, the data on that report is in graphical format, which the Board cannot interpret. See Kelly v. Brown, 7 Vet. App. 471, 474 (1995). However, the VA examination, as noted below, discussed this test. VA attempted to secure the complete medical records from the veteran's Reserve service. Unfortunately, they could not be obtained. In July 2006, a Formal Finding of Service Record Unavailability was entered for these records. There are conflicting medical opinions of record. In February 2003, the veteran underwent a private audiological evaluation. It was determined that the veteran had decreased hearing in the right ear occurring over the past 2-3 years. The veteran denied tinnitus. The examiner indicated that the results on testing were not consistent with retrocochlear pathology. In an October 2003 letter, F.W.S., MD, FACS, stated that he had examined the veteran in January 2003. He had sensorineural hearing loss which was worse in the right ear. The veteran reported a history of noise exposure which could have potentially contributed to his sensorineural hearing loss. In June 2004, the veteran was afforded a VA audiological evaluation. The examiner reviewed the claims file and noted that there was no mention of any hearing loss or tinnitus during the veteran's relatively short-term active duty. The veteran thereafter had Reserve duty and the 1968 audiogram showed some roll-off in the low frequency and high frequency end of the hearing range, although not compensably. The examiner observed that the veteran was seen by a private physician in 2003 during which time it was noted that the veteran had experienced reduced hearing in his right ear for 2-3 years. The veteran denied the presence of tinnitus, imbalance, or obvious severe noise. The examination included looking at the possibility of a retrocochlear lesion based on the right side asymmetry. The examiner noted Dr. S.'s opinion that the substantial history of inservice noise exposure during service could have potentially contributed to the sensorineural hearing loss. However, this physician did not describe any other events which could have also potentially contributed to the hearing loss and the statement was made without the benefit of a review of the claims file. Currently, the VA examiner noted that the veteran indicated a long-standing and gradually worsening hearing loss with the right ear being somewhat poorer than the left ear. The veteran did not claim service connection for hearing loss until 2003 when he sought medical evaluation for the right ear asymmetry. The veteran also reported some periodic tinnitus which might be greater on the right side, but he was indefinite. He described no specific date or etiology. With regard to noise exposure, the veteran indicated that he had no noise exposure prior to service. During his period of active duty in 1964 and during Reserve duty, the veteran described noise exposure to rifle fire and training fire. In civilian life, he indicated that he worked in a machine shop for approximately 8 years and was required to wear ear protection due to noise. He subsequently worked as a dairy farmer with some routine exposure to farm equipment and chain saws. Puretone thresholds, in decibels, were as follows on audiological evaluation: HERTZ 500 1000 2000 3000 4000 RIGHT 10 65 60 55 65 LEFT 20 15 35 25 45 Speech audiometry revealed speech recognition ability of 78 percent in the right ear and of 94 percent in the left ear. Thus, hearing loss as contemplated within 38 C.F.R. § 3.385 was shown. The examiner indicated that the audiological evaluation revealed high frequency sensorineural hearing loss, worse on the right. The examiner opined that the general configuration and asymmetry of the hearing loss did not suggest acoustic trauma patterns typical of military training fire. The inservice audiograms were within normal limits on entrance and exit and the 1968 examination did not reflect a hearing loss that resembled this particular asymmetry in any respect. Likewise, there was no evidence or suggestion of tinnitus as it related to military service. The earliest test indicating a hearing loss available for the veteran was dated in 2003, a point too far removed from service so as to establish an association thereto. The unusual configuration of loss, the extreme asymmetry, the denial of tinnitus on the 2003 examination, and the suspicion or at least the possibility of retrocochlear concerns raised at that time suggested that this loss was sustained sometime after the military service. At this point, the examiner deemed it more likely than not that the hearing loss and tinnitus were related to factors other than military noise exposure. The Board must weigh the credibility and probative value of the medical opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997). The failure of the physician to provide a basis for his or her opinion goes to the weight or credibility of the evidence. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) The veteran maintains that currently diagnosed hearing loss and tinnitus were incurred during service, to include during active duty training. The competent medical evidence that supports his contention is the opinion of Dr. S. The Board accepts that the veteran had some inservice noise exposure. Thus, there was a factual predicate for the opinion provided. However, the opinion was equivocal in nature and did not explore any noise exposure outside of service. An opinion that is equivocal and speculative is not legally sufficient to establish service connection. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). An award of service connection must be based on reliable competent medical evidence and conjectural or speculative opinions as to some remote possibility of such relationship are insufficient. See 38 C.F.R. § 3.102; see also Morris v. West, 13 Vet. App. 94, 97 (1999) (diagnosis that appellant was "possibly" suffering from schizophrenia deemed speculative); Bloom v. West, 12 Vet. App. 185, 186-87 (1999) (treating physician's opinion that veteran's time as a prisoner of war "could" have precipitated the initial development of his lung condition found too speculative to be sufficient medical nexus evidence); Davis v. West, 13 Vet. App. 178, 185 (1999) (any medical nexus between in-service radiation exposure and fatal lung cancer years later was speculative at best, even where one physician opined that it was probable that lung cancer was related to service radiation exposure); see also 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); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of the claimed disorder or any such relationship). Conversely, the Board attaches the most probative value to the VA opinion as it is well reasoned, detailed, consistent with other evidence of record, and included review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.) The VA opinion included a review of the claims file, a discussion of the pertinent service findings, current examination, and a discussion of pre-service, service, and civilian noise exposure. This opinion is thorough in nature. Thus, this opinion is the more probative opinion. In sum, the competent evidence does not establish that hearing loss disability began in service. There was no ear disease or injury shown on ADT, or ear injury shown on IDT. Rather, the inservice findings, whether ADT, or IDT, were all determined by the VA examiner, a medical professional to be within normal limits or not etiologically connected to current hearing loss or tinnitus. According to the VA examiner's opinion, which the Board finds to be the most probative evidence of record as it was performed by a medical professional and was based on examination of the veteran and a review of the record, current hearing loss and tinnitus are not attributable to service. Neither the Board nor the veteran is competent to supplement the record with unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Conversely, health professionals are experts and are presumed to know the requirements applicable to their practice and to have taken them into account in providing a diagnosis. Cohen v. Brown, 10 Vet. App. 128 (1997). Accordingly, service connection is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the veteran's claim, and it must be denied. ORDER Service connection for bilateral hearing loss is denied. Service connection for bilateral tinnitus is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs