Citation Nr: 1320267	
Decision Date: 06/24/13    Archive Date: 07/02/13

DOCKET NO.  11-04 413	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


	THE ISSUES	

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

M. Sopko, Associate Counsel


INTRODUCTION

The Veteran had active service from December 1967 to July 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. 

The Veteran requested a Travel Board hearing in his February 2011 substantive appeal (VA Form 9).  The Veteran withdrew his request for a hearing in June 2012.  Under these circumstances, the Board finds that the Veteran has been afforded his opportunity for a hearing and that his request to testify before the Board has been withdrawn.  38 C.F.R. § 20.704(e) (2012).


FINDINGS OF FACT

1. The Veteran did not incur bilateral hearing loss during or as a result of service. 

2. The Veteran did not incur tinnitus during or as a result of service. 


CONCLUSIONS OF LAW

1.  Bilateral hearing loss has not been shown to be the result of disease or injury incurred in or aggravated by the Veteran's military service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2012).

2.  Tinnitus also is not shown to be due to disease or injury incurred in or aggravated by his military service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Introductory Matters 

In this decision, the Board will discuss the relevant law which it is required to apply.  This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction.  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). 

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. 
§§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).  The notice must be provided to the Veteran prior to the initial adjudication of his claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

VA has satisfied its duty to notify by issuing a pre-adjudication notice letter in October 2009.  The letter advised the Veteran of what evidence was required to substantiate his claims and of his and VA's respective duties for obtaining evidence.  The October 2009 letter provided notice regarding the disability evaluation and effective date elements of a service connection claim.  Dingess, 19 Vet. App. at 473. 

The duty to assist provisions of the VCAA have been met.  The claims file contains service treatment records (STRs), reports of post-service medical treatment, and the report of a VA examination in January 2010.  The examination was adequate because it was based on a thorough examination, a description of the Veteran's pertinent medical history, and appropriate diagnostic tests.  The examiner also provided a rationale for the opinion.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).  


The Veteran's representative has argued that the examination was inadequate because the examiner did not review the claims file before rendering an opinion on the etiology of the Veteran's hearing loss and tinnitus.  However, the Court has held that VA cannot reject a medical opinion simply because it is based on a history supplied by the Veteran and that the critical question is whether that history was accurate.  Kowalski v. Nicholson, 19 Vet. App. 171 (2005); see, e. g., Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (reliance on a Veteran's statement renders a medical report incredible only if the Board rejects the statements of the Veteran).  Here, the Veteran's reported history of the in-service injury was accurate, so the opinion is adequate.  

The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal.  He has been given ample opportunity to present evidence and argument in support of his claim.  Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review.  General due process considerations have been complied with by VA.  See 38 C.F.R. § 3.103 (2012). 

Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a three-element test must be satisfied in order to establish entitlement to service connection.  Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement).  Walker v. Shinseki, 708 F.3d. 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) ((quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)). 

Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard.  See Walker, 708 F3d. at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases.").  When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes").  38 C.F.R. § 3.303(b).  In order to establish the existence of a chronic disease in service, the evidence must show 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."  Id.  Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned.  Id.  If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim.  Id. 

The Federal Circuit noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a veteran can establish service connection for a chronic disease" under subsection 3.303(b).  Walker, 708 F3d. at 1336.  Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period."  Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation").  Significantly, the Federal Circuit indicated that showing a continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above: "  The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added).  Id. at 1339. 

Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b).  Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  Id. at 1338-40.  Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "medical nexus of a relationship [sic] between the condition in service and the present condition is required."  Id. at *1338; see also id. at 1336, 1340 (holding that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as hearing loss was not among the chronic diseases listed in section 3.309(a)). 

Because the Veteran has been diagnosed with bilateral sensorineural hearing loss, and bilateral sensorineural hearing loss is an organic disease of the nervous system under section 3.309(a), the provisions of subsection 3.303(b) for chronic disabilities apply, and the claim may be supported by evidence of a continuity of symptomatology after service. 

The Veteran's bilateral sensorineural hearing loss is also eligible for presumptive service connection.  Specifically, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for bilateral sensorineural hearing loss may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a).  However, this presumption will be rebutted if there is affirmative evidence to the contrary.  38 C.F.R. § 3.307(d). 

The Board must assess the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  This evaluation generally involves a three-step inquiry.  First, the Board must determine whether the evidence is competent.  See, e.g. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).  Second, the Board must determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  Third, the Board must assess the probative value and weight of the evidence in light of the entire record.  Gonzales, 218 F.3d at 1380-81.

As observed by the Federal Circuit, lay evidence must "demonstrate some competence."  See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted).  The Board may therefore discount the probative value of lay evidence if it finds such evidence not to be competent.  See id.; see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration).  However, the Board may not "categorically" require medical evidence or disregard lay evidence without first assessing its competence.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that it was error in a cause-of-death claim to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death, and likewise to reject categorically the claimant's testimony on this issue as not competent simply because she was a lay person); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it).  Importantly, lay statements submitted by or on behalf of a claimant can be competent with respect to both the diagnosis and the etiology or cause of a disability.  See Davidson, 581 F.3d at 1316.

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 469 (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise).  Lay evidence is competent if it is provided by a person who has first-hand knowledge of facts or circumstances, or conveys matters that can be observed and described by a lay person.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge, such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy).  For example, the Court has held that a lay person is competent to diagnose a disease with "unique and readily identifiable features" such as varicose veins.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  Similarly, the Court has found a lay person competent to identify tinnitus and flat feet, which are disorders that can be identified based on lay observation alone.  See Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). 

However, lay testimony is not competent with respect to determinations that are "medical in nature" or require medical knowledge due to their complexity.  See Barr, 21 Vet. App. at 309.  For example, the Court held that a claimant was not competent to determine whether he had rheumatic fever, which was a more medically complex condition.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).  The Federal Circuit has held that lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances: (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007).

Competent medical evidence, as distinguished from lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a)(1). Competent medical evidence may include statements conveying sound medical principles found in medical treatises.  Id.  It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.  Id.

The competency of evidence differs from the weight assigned to the evidence, which varies according to its credibility and probative value.  See Layno, 6 Vet. App. at 469; accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify.").  The Board discounts the weight of evidence it finds not to be credible.  See Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). 

In determining whether statements submitted by a veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").  Further, the Federal Circuit has held that while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence.  See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record.").  Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors.  See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .").

Hearing Loss

For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when (1) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; (2) when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 or greater; or (3) when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2012).

As noted above, in interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a three-element test must be satisfied in order to establish entitlement to service connection.  Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Walker v. Shinseki, 708 F.3d. 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)).

As to the first prong, the Veteran was afforded a VA compensation examination in January 2010.  The results of the audiometric testing (with corresponding decibel loss) conducted at this examination were:


500 Hertz
1000 Hertz
2000 Hertz
3000 Hertz
4000 Hertz
Right Ear
15
15
10
35
50
Left Ear
15
15
15
35
50

Additionally, the Veteran had Maryland CNC speech recognition scores of 96 percent in both ears.  As he has hearing loss exceeding 40 decibels in both ears in at least one of the measured frequencies, he has bilateral hearing loss for VA purposes pursuant to 38 C.F.R. § 3.385 (2012).

As to the second prong, the Board finds that the Veteran's claimed acoustic trauma is consistent with the places, types, and circumstances of the Veteran's service in the Army at that time.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).  The Veteran's DD Form 214 shows that his military occupational specialty (MOS) was a repair parts specialist and that he served in the Republic of Vietnam.  In such a position, the Veteran was likely exposed him to mortar fire and artillery.  See Veteran's October 2009 statement. 

The Veteran has specifically argued that given such in-service acoustic trauma, he should be granted service connection.  However, despite satisfying the first two prongs, the Board finds that the third prong - the so-called "nexus" requirement - has not been met. 

The Veteran's STRs reveal two audiometric examinations - one in August 1967 upon induction, and a second in July 1970 upon separation.  The results of these audiometric examinations (with corresponding decibel loss) were:

August 1967


500 Hertz
1000 Hertz
2000 Hertz
3000 Hertz
4000 Hertz
Right Ear
-5
-5
-10
Not measured
5
Left Ear
-5
-5
-5
Not measured
5

July 1970


500 Hertz
1000 Hertz
2000 Hertz
3000 Hertz
4000 Hertz
Right Ear
5
0
0
0
0
Left Ear
10
0
0
0
0

These examinations reveal the Veteran had normal hearing upon separation from service.

In July 2009, the VA compensation examiner opined that it was less likely than not that the Veteran's hearing loss was caused by or a result of his military service. While no other medical evidence in the claims folder discusses the etiology of the Veteran's bilateral hearing loss, the Veteran reported a "lengthy civilian history of noise exposure - several years in lumber and paper mills, and 30+ years in construction."  Although the Veteran reported wearing hearing protection while in post-service occupations and asserted not having hearing protection while in service, the examiner nevertheless concluded the Veteran's "lengthy civilian career of excessive noise" most likely caused his hearing loss.  Although the Veteran is competent to report in-service acoustic trauma, he is not competent to render a probative (persuasive) opinion on a medical matter.  See Bostain v. West, 11 Vet. App. 124, 127 (1999). 

The Board additionally notes that although the hearing loss claim may be supported by evidence of a continuity of symptomatology or on a presumptive basis, as discussed above, neither is implicated in this case.  As for the former, the Veteran has alleged a continuity of symptoms since service.  See Veteran's August 2009 statement.  The Board, however, finds this allegation is not credible.  There is no objective confirmation of hearing loss during his service, even including the conceded acoustic trauma.  His STRs reveal a July 1970 audiogram indicating normal hearing.  Moreover, a VA treatment record from April 2004 indicates a self-report of only "mild hearing loss," while a December 2008 VA treatment record indicates a self-report of "no hearing loss."  To the extent that the Veteran's self-reports are accepted as true there was a period of time, specifically in December 2008, when he denied any hearing loss whatsoever.  Such a report contradicts the assertions made in the context of his claim for benefits that he has experienced hearing loss continually since service.  Therefore, the Board finds that his current allegations in this regard are not credible.  Considering whether service connection is warranted on a presumptive basis, there is no evidence that the Veteran's hearing loss manifested to the required degree of 10 percent or more within one year from the date of his separation from service, i.e., by July 1971.

Given the foregoing, the preponderance of the evidence is against the claim of service connection for bilateral hearing loss and the doctrine of reasonable doubt is not for application.  See 38 U.S.C.A.§ 5107(b); Gilbert, 1 Vet. App. 49, 55-57 (1990).

Tinnitus

As already discussed, in interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the Federal Circuit Court held that a three-element test must be satisfied in order to establish entitlement to service connection.  Specifically, the evidence must show (1) the existence of a current disability; 
(2) in-service incurrence or aggravation of a relevant disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement).  Walker v. Shinseki, 708 F.3d. 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))).  

Prongs 1 and 2 of the service-connection test are met.  In January 2010, the VA compensation examiner diagnosed the Veteran with tinnitus, thereby satisfying the first prong of a service-connection claim - the existence of a current disability.  
Tinnitus, is "a noise in the ear, such as ringing, buzzing, roaring, or clicking.  It is usually subjective in type."  See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (DORLAND'S) 1956 (31st ed. 2007).  And, indeed, as the representative points out in his May 2012 VA Form 646, because of the inherently subjective nature of tinnitus, it is readily capable of even lay perception and diagnosis.  Charles v. Principi, 16 Vet. App. 370 (2002).

Additionally, and for the same reason as discussed above, the Board accepts the claimed acoustic trauma inherent as proof of an in-service incurrence or aggravation of a relevant injury, thereby satisfying the second prong of a service-connection claim.

But even accepting there was noise-induced trauma or related injury in service, and even acknowledging the Veteran now has tinnitus, there still has to be attribution of his current tinnitus to the injury or trauma in service.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").  And, unfortunately, it is in this equally critical respect that the evidence is less favorable to his claim.

The third prong of the service connection claim - the nexus requirement - is not met, so this claim of entitlement to service connection for tinnitus must be denied.  Keep in mind that, because tinnitus is not one of the conditions identified in 38 C.F.R. § 3.309(a) as necessarily chronic, the recent holding in Walker indicates the Veteran resultantly cannot establish the required linkage between this condition and his military service merely by alleging or showing he has experienced continuous tinnitus since his service.  This, then, does not allow the Board to accept his lay testimony offered in his August 2009 lay statement - that he had experienced tinnitus dating back to his service - as grounds or justification for concluding his tinnitus incepted or began during his service, especially when there is a VA medical nexus opinion of record contrarily disassociating the current tinnitus from service.

In January 2010, the VA compensation examiner opined, for the same reasons as discussed above, it was less likely than not that the Veteran's tinnitus was caused by or a result of his military service. 

The VA compensation examiner's unfavorable opinion is the only medical evidence in the claims file addressing this determinative issue of causation and time of onset or inception of the tinnitus.  And seeing as though, under Walker, the Veteran cannot refute this opinion merely by alleging continuous tinnitus since service, the third prong of showing his entitlement to service connection has not been satisfied.

Given the foregoing, the preponderance of the evidence is against this claim, and the doctrine of reasonable doubt is not for application, in turn requiring the denial of this claim.  See 38 U.S.C.A.§ 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49, 55-57 (1990).


ORDER

The claim of entitlement to service connection for bilateral hearing loss is denied.

The claim of entitlement to service connection for tinnitus also is denied.



____________________________________________
JOHN Z. JONES
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs