Citation Nr: 1316657 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 09-08 943 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from April 1966 to April 1968; the Veteran was awarded a Combat Infantryman Badge (CIB) for his heroic service in combat during his period of service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which in pertinent part denied service connection for bilateral hearing loss and tinnitus. The Veteran timely appealed that decision. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in March 2011; a transcript of that hearing is associated with the claims file. This case was before the Board in June 2011 and October 2012 when it was remanded for further development. That development having been completed, the case has been returned to the Board for further appellate review at this time. FINDINGS OF FACT 1. A hearing loss did not have its clinical onset in service and is not otherwise related to active duty; a sensorineural hearing loss was not exhibited within the first post service year. 2. Tinnitus did not have its clinical onset in service and is not otherwise related to active duty. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred or aggravated in service, and a sensorineural hearing loss may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). 2. Tinnitus was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in March 2008 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a March 2011 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims herein decided. The Board is cognizant that the claims were previously remanded in October 2012, to include affording the Veteran another VA audiologic examination. Such was performed in November 2012. Therefore, the Board finds that its remand order has been substantially complied with, and it may proceed to adjudicate upon the merits of this case. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a 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 disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). "[L]ay 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). 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")). 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 opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). 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 (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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 (2012). Additionally, the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 38 C.F.R § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran's separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley, supra. On appeal, the Veteran has averred that he should be service connected for his bilateral hearing loss and tinnitus because such is due to the combat noise he experienced during his deployment to the Republic of Vietnam. In his March 2011 hearing, the Veteran reported that he was exposed to weapons, artillery and mortar fire during military service and that on separation from service he was not given a hearing test. He additionally reported onset of his hearing loss in 1971, and stated that his private doctor referred him to a specialist, who diagnosed him with hearing problems and related such problems to his noise exposure in Vietnam. The Board has reviewed the Veteran's service treatment records, which demonstrates the following audiometric data on enlistment into service in January 1966: HERTZ 500 1000 2000 3000 4000 RIGHT -5 -5 -5 - 5 LEFT -5 -5 5 - 15 In the report of medical history at that time, the Veteran did not report any hearing loss or tinnitus. On separation from service in March 1968, the Veteran's audiometric data demonstrated the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 - 5 LEFT 5 0 5 - 10 Again, the Veteran did not report any hearing loss or tinnitus on his report of medical history obtained at that time. The intercurrent treatment records do not demonstrate any complaints of, treatment for, or diagnosis of any hearing loss or tinnitus symptomatology. There are no private treatment records from 1971 of record, and the Veteran has not provided VA with the name or address of a medical professional who treated him at that time such that VA would be able to assist him in obtaining those records. A review of the Veteran's private treatment of record demonstrate that in April 2006 he sought treatment for a several month history of itching in his ears and a decrease in hearing. Examination revealed some dryness and inflammation of the external auditory canals bilaterally, though there was no evidence of middle ear pathology. An audiological examination was performed-and the results were included with the report-which revealed a bilateral high-frequency sensorineural hearing loss from 1500-8000 Hertz (Hz) in the mild range in the right ear and in the mild to moderate range in the left ear. He had bilateral speech discrimination scores of 84 percent, and his impedance testing was normal. The results were reviewed with the Veteran and he was prescribed a lotion for his dry skin on the ears. The Veteran followed-up with that provider in May 2006, and he was noted as having"rather thick almost gelatinous type debris in the external auditory canals" at that time. Debridement was performed and the Veteran stated that his ears felt much clearer following that; he was instructed to keep water out of his ears and to follow up again. The Veteran was seen again in June 2006, at which time the Veteran reported that all his ear complaints had entirely resolved. It appears that the dry skin returned again in January 2007 and more of the lotion was prescribed to him at that time. The January 2007 note is the last treatment demonstrated for his ears in his private treatment records in the claims file. The Veteran's VA treatment records were reviewed as well. Those records reveal that both his hearing loss and tinnitus were noted as problems, though he did not receive any formal treatment for either condition from VA. In April 2008, the Veteran underwent a VA audiological examination. At that time, the Veteran reported having a buzzing sound in his left ear and that he had left hearing loss greater than the right. He reported the onset of his symptomatology "for a couple of years now." The Veteran reported that he generally worked on patrols during military service and was subjected to combat situations with the use of his M-16 rifle and other combat noise for seven months without hearing protection; he reported being close to at least one ammunition dump explosion during his period of combat service in the Republic of Vietnam. The Veteran did report attempting to put a round of ammunition in his ears to protect his hearing, though no formal hearing protection was issued during service. Occupationally, the Veteran was noted as working in federal law enforcement and that he had to qualify twice yearly with his gun; he reported hearing protection was used at those times. He denied having any noisy hobbies. Regarding his tinnitus, it was noted as primarily on the left side, though it could be centrally located in his head; he stated it was periodic, though it could last for hours when he was aware of it. He also related that a couple of weeks prior, he suffered a bout of vertigo, which is the first such time he had that symptom, though he also recalled having that issue one other time prior. He also reported being hit in the head as a 13 year old without any resultant injuries noted. His brother who was also in the service had a hearing aid, otherwise he denied having a family history of hearing problems; he also denied otalgia, otorrhea and use of a hearing aid himself. The following audiometric data was obtained on examination at that time: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Speech Discrimination RIGHT 5 10 30 25 30 100% LEFT 10 10 40 50 50 84% The examiner concluded that the Veteran had normal hearing from 1000 Hz with a mild sensory loss from 2000 to 6000 Hz sloping to a moderate degree at 8000 Hz for the right ear, and normal hearing through 1000 Hz sloping to a moderate degree at 2000 Hz and to a moderately severe degree at 8000 Hz for the left ear. There was no claims file available for review at that time. The examiner noted that the Veteran was exposed to weapons fire during military service without hearing protection "which certainly could contribute to his present hearing loss," but noted that the tinnitus had only been reported for "a couple of years." He noted that it was unclear whether such was due to military service or another cause. He noted that it was difficult to evaluate the case without the claims file and stated that it would be mere speculation to provide an opinion at that time. The Veteran underwent another VA audiological examination in July 2011. In that examination, the examiner noted that the Veteran's behavioral responses during testing resulted in a bilateral mixed loss and that the likelihood of this loss being mixed in origin with no other clinical manifestations suggesting possible conductive involvement was slim. She additionally noted that the inter-test reliability was judged to be fair and that the findings were not adequate for rating purposes. As a result of this finding, she could not give a medical opinion without resorting to mere speculation. The Veteran therefore was afforded another VA audiological examination in November 2011. The following results were obtained at that time: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Speech Discrimination RIGHT 5 5 30 35 35 96% LEFT 0 0 40 55 50 94% The examiner diagnosed the Veteran with sensorineural hearing loss bilaterally at that time, and specifically noted that the examination was valid for rating purposes. The examiner noted that the Veteran first noticed hearing difficulties around 2003 when he retired from law enforcement. He stated that he served 7 months in combat in Vietnam in the infantry, where he was exposed to artillery, rifles, automatic weapons, aircraft engines, heavy equipment, and explosives without the use of hearing protection. He also reported that he recreationally used firearms for hunting, but that he uses hearing protection and that he also "sometimes" used hearing protection when using lawn equipment. The examiner additionally noted that he reviewed the Veteran's claims file. He, however, stated that the Veteran's hearing loss was not at least as likely as noted caused by or the result of military service because the "Veteran's service medical records indicate that at induction and separation hearing thresholds were within normal limits and indicated no significant threshold shifts. There is no delayed onset of hearing loss per any current audiological research." The Veteran was additionally diagnosed with tinnitus during that examination, which the Veteran reported as being bilateral in nature, more prominent in his left ear, which first began in the 1990's. He described a buzzing sound and noted that sometimes it sounded like his left ear "drops out" and he can't hear anything then his hearing will come back with the tinnitus, often louder in his left ear. The examiner concluded that the Veteran's tinnitus was less likely than not caused by or the result of military noise exposure stating that "[w]hile the Veteran was exposed to combat noise during service in the Army, he reports that tinnitus did not begin until the 1990's. While the [Veteran] currently has hearing loss, there was no evidence of noise injury during service since there was no hearing loss or significant threshold shifts during his time of service. Tinnitus could be related to [Veteran's] occupational noise exposure in law enforcement." On the basis of the foregoing evidence, the Board finds that service connection for bilateral hearing loss and tinnitus is not warranted. Bilateral hearing loss and tinnitus have been diagnosed during the appeal period; specifically, the Board notes that the Veteran's audiometric data from the most recent VA examination meets the criteria for bilateral hearing loss under 38 C.F.R. § 3.385. Therefore, the first element of service connection has been met. There is also credible, convincing evidence of combat noise exposure during military service, to include artillery, mortar and weapons fire. The Veteran was awarded a CIB for his combat service in the Republic of Vietnam, and exposure to such noises would be of the types, places and circumstances commensurate with such combat service. See 38 C.F.R. § 1154(b) (West 2002). Therefore, the Board notes that the second element of service connection has been met in this case. With regards to any sort of diagnosis or other symptomatology shown in service, the Veteran's service treatment records and his lay testimony do not demonstrate any complaints of, treatment for, or diagnosis of a hearing loss during service or within one year of military service. Accordingly, the Board cannot award service connection in this case for bilateral hearing loss on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. The Veteran has not claimed that he suffered direct hearing loss-as in sudden loss of hearing as a result of an explosion or other type of noise exposure-during service. As all of the evidence of record demonstrates onset of hearing loss symptomatology well after discharge from service-the earliest stated onset of hearing loss was in 1971, 3 years after discharge from service-service connection cannot be warranted on the basis of continuity of symptomatology in this case. See 38 C.F.R. § 3.303(b). Likewise, with regard to tinnitus, he has not claimed inservice onset; rather, he has claimed that noise exposure in service resulted in the eventual onset of tinnitus sometime in the years after service. With regards to the onset of hearing loss, the Board notes that the Veteran's statements as to onset are inconsistent. The Veteran's private treatment in April 2006 demonstrated a "couple of months" history of decreased hearing; likewise, the Veteran reported hearing loss began in 2003, near retirement from law enforcement, in his November 2011 VA examination, and "for a couple of years" in his April 2008 examination. In contrast, the Veteran testified that his hearing loss began in 1971, within 3 years of discharge from service, during his March 2011 hearing. Given the relatively consistent reporting of hearing loss beginning in the early 2000's during his private treatment and VA examinations, the Board finds that the Veteran's statements with regard to that timeframe of onset are more credible in this case. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The Board further notes that the Veteran's report of an earlier onset is made a single time during his hearing with a Veterans Law Judge, which would possibly determine the outcome of his case and entitlement to benefits; it is less convincing than his statements made to treating physicians. The most convincing evidence reflects that the Veteran's tinnitus began sometime in the 1990's and the hearing loss symptomatology began in the early 2000's, by the Veteran's own reports. The Board finds such evidence to be particularly probative and to weigh against a finding of service connection in this case. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim). With regards to competent evidence respecting a nexus opinion, the Board notes that the Veteran, himself, is not competent to render an opinion regarding the etiology of his hearing loss and tinnitus. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). However, the Veteran is competent to state his personal observances, and in this case, he has testified that a private physician told him that his hearing loss and tinnitus were related to noise exposure in Vietnam. See Layno, supra. While the Board cannot state that the Veteran's statement is not credible on the basis of the evidence of record, the Board cannot give such a statement any more than slight probative value-if any at all-in this case as such evidence is not supported in writing by that particular physician. Hearsay medical evidence, as transmitted by layperson, is of limited probative value. The connection between what a physician said and layperson's account of what he purportedly said is simply too attenuated and inherently unreliable to constitute medical evidence. Robinette v. Brown, 8 Vet. App. 69 (1995). The April 2008 examiner's opinion noted that the Veteran's hearing loss and tinnitus "could be" caused by his reported noise exposure in service. Such is speculative in nature. See Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992) (doctor's letter stating probability in terms of "may or may not" was speculative). Additionally, that examiner specifically stated that he was unable to give an opinion regarding etiology because he did not have access to the claims file on which to basis his opinion. Thus, the Board finds that the April 2008 examination report is speculative in nature and has very little, if any, probative value, except to note that hearing loss and tinnitus can potentially be caused by the noise exposure the Veteran reported; such gives, and in fact self-limits itself from giving, no opinion as to whether the noise exposure caused the particular hearing loss and tinnitus the subject of this case. Therefore, the examination report has minimal probative value in this case. The Board notes that the July 2011 examiner does not even attempt to give an opinion as the examination was inadequate. The Board gives that examination report no probative value at all. Finally, the November 2012 examiner reviewed the claims file and noted the Veteran's report of conceded noise exposure in service. He noted that the Veteran's hearing loss and tinnitus began many years after military service, and that there was no evidence of hearing loss, or significant threshold shifts in audiometric data, during service. Based on these facts, the examiner concluded that the Veteran's hearing loss was not at least as likely as not related to his military service, including noise exposure therein. Likewise, he concluded that the Veteran's tinnitus began many years after service and could have been related to his law enforcement career; such was deemed less likely than not related to military service, to include noise exposure therein. The Board finds such opinion to be highly probative. The examiner has medical expertise, reviewed the claims file, including the service treatment records, and considered the relevant and medical history the Board found to be credible, as noted above. In light of that, the examiner could not find a nexus to military service for the Veteran's hearing loss and tinnitus. The slight probative value of the Veteran's self-serving statement that he was told by some private physician that his hearing loss and tinnitus was related to service, even when coupled with the speculative and non-informative statement from the April 2008 examiner that hearing loss and tinnitus can potentially be caused by noise exposure of the type the Veteran had, does not bring the probative value of the evidence in favor of a finding for service connection into at least equipoise with the evidence supporting a finding against service connection in this case. Therefore, the Board finds that the preponderance of the evidence in this case is against a finding that the Veteran's hearing loss and tinnitus were incurred in, due to or the result of, or aggravated by, the Veteran's military service, to include the combat noise exposure therein. Accordingly, the Board finds that service connection for hearing loss and tinnitus is not warranted on the evidence of record, and the claims of service connection for bilateral hearing loss and tinnitus must be denied. See 38 C.F.R. §§3.102, 3.303, 3.307, 3.309. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs