Citation Nr: 1324811 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 09-30 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for hearing loss, right ear. 2. Entitlement to service connection for hearing loss, left ear. 3. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran had active service from March 1971 to March 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which denied, as relevant, service connection for hearing loss and tinnitus. The Veteran filed a Notice of Disagreement (NOD) with the denial in July 2008 and a Statement of the Case (SOC) was issued in August 2009. The Veteran perfected an appeal to the Board on these issues in August 2009. In June 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of this hearing is associated with the claims folder. In December 2011, the Board remanded this appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. The appeal has now been returned to the Board for appellate disposition. The Veteran's Virtual VA paperless claims file has been reviewed in preparing this decision, along with his paper claims file. FINDINGS OF FACT 1. The Veteran's current right ear sensorineural hearing loss was not manifested during his active military service, is not shown to be causally or etiologically related to his active military service, and is not shown to have manifested within one year from the date of his separation from the military. 2. The Veteran's current left ear sensorineural hearing loss was not manifested during his active military service, is not shown to be causally or etiologically related to his active military service, and is not shown to have manifested within one year from the date of his separation from the military. 3. The Veteran's current tinnitus is not shown to be causally or etiologically related to his active military service. CONCLUSIONS OF LAW 1. Service connection for right ear sensorineural hearing loss is not established. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 1154 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 2. Service connection for left ear sensorineural hearing loss is not established. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 1154 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 3. Service connection for tinnitus is not established. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. VA's Duties to Notify and Assist Under applicable law, 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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. This notice must be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty to assist notice letter have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A letter from the RO dated in December 2007 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claims, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The letter also provided the Veteran with information concerning the evaluations and effective dates that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). This letter was provided prior to the initial RO adjudication of his claims. Accordingly, VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed. VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. His STRs, personnel records, Social Security Administration (SSA) disability benefits records, VetCenter treatment records, VA Medical Center (VAMC) treatment records, and private treatment records have been obtained. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. The record indicates that the Veteran was afforded a VA examination and medical opinion in February 2008, and an addendum VA medical opinion in March 2012, the results of which have been included in the claims file for review. The VA examination involved a thorough examination of the Veteran. The VA medical opinions were supported by sufficient rationale and involved reviews of the claims file. Therefore, the Board finds that the VA examination and medical opinions are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claims. Furthermore, the Veteran was afforded a Board hearing in June 2011. A Board member has two duties at a hearing: (1) a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim, and (2) a duty to suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See 38 C.F.R. § 3.103(c)(2) (2012); Procopio v. Shinseki, No. 11-1253, 2012 WL 4882287 at 3 (Vet. App. Oct. 16, 2012) (citing Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010)). Here, during the Board hearing, the VLJ specifically noted the issues as: "The first issue is entitlement to service connection for left ear hearing loss, the second issue is entitlement to service connection for right ear hearing loss and, third, service connection for tinnitus." See BVA Hearing Transcript, page 2. The Veteran was assisted at the hearing by an accredited representative from the Oregon Department of Veterans' Affairs (ODVA). Id. The VLJ and the representative asked the Veteran questions concerning the elements of the claims that were lacking to substantiate the claims for benefits - namely, an in-service incurrence, continuity of symptomatology, and a nexus opinion. See BVA Hearing Transcript, pages 3-9. The representative and the VLJ then asked questions to ascertain whether the Veteran had submitted evidence in support of these claims. See BVA Hearing Transcript, pages 6, 8. In addition, the VLJ and the representative sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. Id. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with the hearing requirements, nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits. As such, the Board finds that the VLJ complied with the aforementioned hearing duties, and that any error in notice provided during the Veteran's hearing constitutes harmless error. The Board is also satisfied as to substantial compliance with its December 2011 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). This included providing the Veteran with an addendum VA medical opinion, which was provided in March 2012. The remand also included readjudicating the claims, which was accomplished in the September 2012 Supplemental SOC (SSOC). Thus, the Board finds that there has been substantial compliance with its remand directives. Id. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Service Connection The Veteran seeks service connection for bilateral hearing loss and tinnitus. Service connection may be granted for a disorder resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (1) the existence of a present disorder; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the present disorder and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d). Certain chronic diseases, such as organic diseases of the nervous system, including sensorineural hearing loss, but not tinnitus, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995 (characterizing high frequency sensorineural hearing loss as an organic disease of the nervous system). Regarding only the sensorineural hearing loss claims, service connection may be awarded for a "chronic" disorder when: (1) a chronic disorder manifests itself and is identified as such during the active military service (or within the presumption period under 38 C.F.R. § 3.307, and the Veteran presently has the same disorder); or (2) a disorder manifests itself during the active military service (or during the presumptive period), but is not identified until later, there is a showing of continuity of symptomatology after the military discharge, and medical evidence relates the symptomatology to the Veteran's present disorder. 38 C.F.R. § 3.303; see Walker v. Shinseki, 708 F.3d 1331 (the theory of continuity of symptomatology can be used only in cases involving those disorders explicitly recognized as chronic under 38 C.F.R. § 3.309(a)). For the showing of chronic disease during the active military service, there is a required 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." 38 C.F.R. § 3.303(b). If a chronic disease is shown during the active military 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). However, continuity of symptoms is required where a disorder is noted during the active military service, but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1331. The claimant bears the burden of presenting and supporting his or her claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. Regarding the first element of service connection (i.e., a current diagnosis), 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 these frequencies 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. Here, current diagnoses have been established. Specifically, at the February 2008 VA examination, the Veteran was found to have tinnitus. Additionally, audiometric testing at the February 2008 VA examination showed a hearing impairment as defined in 38 C.F.R. § 3.385 in the left ear only. A July 2008 private audiogram also contains uninterpreted graphic representations of audiometric data, which the Board as fact finder may interpret. See Ponder v. Shinseki, No. 09-0881, 2010 WL 4241571, at *3 (Vet. App. Oct. 28, 2010) (unpublished single-judge disposition) (noting that in Kelly v. Brown, 7 Vet. App. 471 (1995), the United States Court of Appeals for Veterans Claims (Court) determined that it could not interpret the results of an audiograph because interpretation required a factual finding, which was not the role of the Court in the first instance; the Board, however, was empowered to make factual findings in the first instance); see also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (a non-precedential decision may be cited for any persuasiveness or reasoning it contains). As relevant, an auditory threshold of 40 decibels and over is shown in frequencies 3000 and 4000 Hertz, respectively, for the right hear. Thus, a hearing impairment as defined in 38 C.F.R. § 3.385 is also demonstrated in the right ear. The Veteran has satisfied the first element of service connection. As stated above, the second element of service connection requires medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease. Here, the Veteran contends that he sustained bilateral hearing loss and tinnitus as the result of in-service noise exposure from rifles during basic training, aircrafts while working on the flight lines with the 366th Fighter Combat Squadron, and rockets and mortars during his active military service in the Republic of Vietnam (Vietnam). The Veteran's STRs document that when he entered the military in 1971, his entrance examination revealed normal hearing. The Veteran's STRs do not contain any complaints of or treatment for bilateral hearing loss and/or tinnitus. His hearing was normal at his military separation examination in 1974 and he denied a history of hearing loss. Additionally, medical history taken in April 1974 reveals that the Veteran denied having hearing loss or having ear problems. Nonetheless, information from the National Personnel Records Center (NPRC) indicates the Veteran served in Vietnam from April 1972 to March 1973. Service personnel records show the Veteran was assigned to the 620th Tactical Control Squadron at DaNang Airfield in Vietnam as an Administrative Specialist. The record also contains a chronology report of Vietcong/North Vietnamese attacks on the Ten Primary U.S. Air Force Operating Bases during the Veteran's Vietnam service, which included documented attacks that occurred at Da Nang. Thus, the claimed noise exposure is consistent with the circumstances of the Veteran's military service. 38 U.S.C.A. § 1154. In Hensley v. Brown, 5 Vet. App. 155 (1993), the Court held that, even though disabling hearing loss - that is, according to the requirements of 38 C.F.R. § 3.385 - may not have been demonstrated at time of separation from service, a Veteran may still establish his entitlement to service connection for a current hearing loss disorder by showing he now satisfies the threshold minimum requirements of § 3.385 and by submitting evidence that his current hearing loss disorder is related to his military service. See also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Post-service, at his Board hearing, the Veteran indicated that he could not recall the onset of his hearing loss, but in his NOD, he claimed he underwent a hearing test at a former place of employment, which showed hearing loss three months after his discharge from service. The Veteran reported that records of this treatment were not available. At the hearing, the Veteran also provided a date of onset of his tinnitus in 1975. The first post-service relevant complaint of bilateral hearing loss and/or tinnitus was at the February 2008 VA examination, which was scheduled in connection with the Veteran's service connection claims. Again, the Veteran's active duty ended in 1974. At the February 2008 VA examination, in addition to in-service noise exposure, the Veteran reported that he had 30 years of excessive occupational (metal fabrication) and recreational noise exposure with partial hearing protection use. The VA audiologist opined that the Veteran's current hearing loss is less likely as not caused by or a result of acoustic trauma. The rationale provided was the Veteran had normal hearing at separation and over 30 years of occupational and recreational noise exposure with only partial hearing protection. The examiner also reasoned that he had "clinical expertise and experience" on this matter. The VA examiner also opined that the Veteran's current tinnitus is less likely as not caused by or a result of acoustic trauma. The rationale provided was the Veteran had normal hearing at separation and excessive occupational/recreational noise exposure, and that by the Veteran's own admission, his tinnitus started "sometime after" service. A VA addendum medical opinion was provided in November 2012. The February 2008 VA audiologist conducted another review of the Veteran's claims file prior to providing his medical opinion. The VA examiner determined that the Veteran's current bilateral hearing loss and tinnitus are less likely as not (less than 50/50 probability) caused by or a result of acoustic trauma. The November 2012 VA examiner reasoned that the Veteran's STRs show normal bilateral hearing at his military induction in 1971. The examiner pointed out that the Veteran's military separation hearing screening in 1974 also revealed normal bilateral hearing. The examiner reported that the military separation examination did not show any evidence of degradation of hearing when the entrance and separation military examinations were compared. The examiner found that, although the Veteran reported military noise exposure while in basic training and while in Vietnam, there was no evidence to support the claim of hearing loss and no evidence of degradation of the hearing loss. The examiner also reasoned that the Veteran reported that the date of onset of his tinnitus was following his active duty period. The examiner found that there was no medical documentation to support the Veteran's claim that his tinnitus started shortly after his military separation. The examiner stated that, although it is well-recognized that tinnitus can be related to excessive noise exposure, there is no nexus to support the notation that the Veteran's tinnitus is related to military noise exposure. As further support for his opinion, the examiner cited to the medical literature, specifically, a "OPM study." The examiner stated that the study found that if there is an absence of hearing loss or degradation of hearing while in service, then there is no medical evidence that suggests hearing loss will later be acquired from noise exposure incurred in service. The examiner opined that the Veteran's current bilateral hearing loss and tinnitus are likely related to the Veteran's post-service occupational and recreational noise exposure. The examiner reasoned that the Veteran reported a long history of excessive occupational and recreational noise exposure. As previously mentioned, the third element of service connection requires medical evidence of a nexus between the current disorder and the in-service disease or injury. Here, the only medical nexus opinions of record are negative. The VA examiners clearly reviewed the STRs and other evidence in the claims folder. They provided medical opinions that are supported by and consistent with the evidence of record. They gave alternate etiologies for the Veteran's current bilateral hearing loss and tinnitus - namely, his post-service occupational and recreational noise exposure. There is no positive evidence to the contrary of these opinions in the claims file. The VA and private treatment records do not provide contrary evidence. For all of these reasons, service connection for bilateral hearing loss and tinnitus is not warranted. Regarding the chronicity of the bilateral sensorineural hearing loss, the Board notes that the Veteran reports that his bilateral hearing loss began in service and has continued since that time. However, the Veteran's current recollections are not consistent with the entire evidentiary record. The audiometric readings in service are a more accurate means to measure hearing acuity, and those findings greatly outweigh the Veteran's current assertions. Additionally, the Board notes that during service the Veteran denied having hearing loss and in 1974 he denied having a history of ear problems. Despite the Veteran's presumed in-service noise exposure, the STRs do not document any decrease in his hearing or complaints of hearing problems. Furthermore, at his Board hearing, he testified that he could not recall the exact date when his bilateral hearing loss began, and that his tinnitus began in 1975 (after his military discharge). Additionally, the Veteran first reported symptoms of bilateral hearing loss at the February 2008 VA examination, more than three decades after his military discharge in 1974. As addressed more fully below, his current recollections many decades later are inaccurate and deemed not credible. Therefore, the Board finds that the evidence of record does not document continuity of symptomatology of bilateral sensorineural hearing loss during and since the Veteran's active military service. Thus, the Board finds that the medical evidence does not establish a "chronic disorder." 38 C.F.R. § 3.303; see Walker, 708 F.3d at 1331. The Veteran's bilateral hearing loss claims cannot be granted on this theory of entitlement. Additionally, the Board finds that the Veteran is not entitled to presumptive service connection for his bilateral ear sensorineural hearing loss. As stated above, the earliest post-service medical treatment records are dated from 2008, and the Veteran was separated from the active duty in 1974. No diagnosis of bilateral ear sensorineural hearing loss was made within one year of the Veteran's military discharge. Thus, the presumption for service connection for chronic diseases does not apply. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). In reaching this decision, the Board has considered the Veteran's and his wife's lay statements in support of the Veteran's claims. The Board acknowledges that the Veteran and his wife are competent, even as laypersons, to attest to factual matters of which they have first-hand knowledge, e.g., lay-observable symptoms and excessive noise in service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence is one type of evidence that must be considered, and that competent lay evidence can be sufficient in and of itself. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), and 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 disorder when: (1) a layperson is competent to identify the medical disorder (noting that sometimes the layperson will be competent to identify the disorder where the disorder 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. Id. Here, the Veteran is competent to report difficulty hearing and changes in his hearing, and is competent to report excessive noise during his active military service. The Veteran's wife is competent to describe instances when the Veteran had difficulty hearing or when the Veteran told her of his hearing problems. Although the Veteran and his wife are competent to make these statements, the Board must still weigh these lay statements against the medical evidence of record. See Layno v. Brown, 6 Vet. App. 465 (1994) (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")). In making this credibility determination, the Board does not find the lay statements concerning the etiology of the Veteran's bilateral hearing loss and tinnitus to be credible. The Veteran's STRs make no reference to bilateral hearing loss and/or tinnitus complaints or treatment. In fact, the Veteran denied hearing loss in service, as well as denied having ear problems in 1974. The Veteran first complained of symptoms at the February 2008 VA examination, more than thirty years after his separation from the active duty. See Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996); see also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). Overall, the Board finds that the recollections of decreased bilateral hearing acuity and tinnitus since service are not credible when viewed against the entire evidentiary record. The opinions of the Veteran and his spouse are greatly outweighed by the medical opinions of the February 2008 and March 2012 VA audiologists who, in addition to having more expertise and training to speak to the issues at hand, have provided analyses based upon the specific facts of this case and actual audiometric readings. It is important to point out that the Board does not find that the lay statements lack credibility merely because they are unaccompanied by contemporaneous medical evidence. See Davidson, 581 F.3d at 1313, quoting Buchanan, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). Rather, the lay statements are found to be not credible because they are inconsistent with the evidence of record, which fails to show bilateral hearing loss and tinnitus complaints or treatment during the Veteran's active military service, which does not show bilateral hearing loss and/or tinnitus until over three decades after his separation from the active duty, and which contains only negative medical nexus opinions. For the reasons set forth above, the Board finds that the lay statements asserting that the Veteran's bilateral hearing loss and tinnitus have been present since his active military service are not credible. Therefore, these statements do not warrant a grant of service connection or a determination that further development of the medical evidence is required. All other evidence of record, aside from the lay statements in support of these current claims, is unfavorable to the claims for service connection for bilateral ear hearing loss and tinnitus. The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claims, and thus that doctrine is not applicable. Gilbert, 1 Vet. App. at 49. The Veteran's CONTINUE ON THE NEXT PAGE claims of entitlement to service connection for bilateral ear sensorineural hearing loss and tinnitus are not warranted. ORDER The claim for service connection for right ear sensorineural hearing loss is denied. The claim for service connection for left ear sensorineural hearing loss is denied. The claim for service connection for tinnitus is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs