Citation Nr: 1328193 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 07-11 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from February 1966 to January 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in December 2005 of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2010 and December 2011, the Board remanded the claim for further evidentiary development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). While on appeal in a rating decision in August 2012, the RO granted service connection for tinnitus and claim is no longer under Board's jurisdiction. In November 2012, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board obtained a medical expert opinion from the Veterans Health Administration (VHA). In January 2013, the Veteran and his representative were provided a copy of the opinion and afforded the opportunity to submit additional evidence and argument, which the Veteran did in March 2013. FINDING OF FACT A bilateral hearing loss disability was not affirmatively shown to have had onset during service; a bilateral hearing loss disability of the sensorineural type was not manifested to a compensable degree within one year from the date of separation from service; and a bilateral hearing disability, first shown after service beyond the one-year presumptive period for sensorineural hearing loss as a chronic disease, is unrelated to an injury, disease, or event, including noise exposure, in service, and a bilateral hearing loss disability is not caused by or made worse by service-connected tinnitus. CONCLUSION OF LAW The criteria for service connection for a bilateral hearing loss disability are not met. 38 U.S.C.A. §§ 1110, 1112, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.385 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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 v. Nicholson, 19 Vet. App. 473, 484-86 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre- and post- adjudication VCAA notice by letters dated in May 2005 and April 2006. As for the content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (to the extent of pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The procedural defect was cured as after the RO provided VCAA notice, the matter was readjudicated as evidenced by the supplemental statement of the case dated in August 2012. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records and VA records. The Veteran was afforded a VA examination in January 2012. Additionally, the Board obtained expert medical opinions from the Veterans Health Administration (VHA) in December 2012 and in May 2013. The Board is not relying on the report of VA examination in January 2012 and the VHA medical opinion in December 2012 on the question of a causal relationship between hearing loss and noise exposure in service. The Board is relying on VHA medical opinion in May 2013 and as the opinion was based on a review of the Veteran's history and described hearing loss in sufficient detail so that the Board's review is a fully informed one, the medical opinion is adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (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). As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. § 1110 (wartime service). Generally, to establish entitlement to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1110 as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). There is a presumption of service connection for hearing loss of the sensorineural type, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Hearing loss for the purpose of VA disability compensation is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Service connection may be granted on a secondary basis for a disability that is proximately due to or is aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Facts In service the Veteran's military occupational specialty was military policeman and he qualified as an expert marksman. The service treatment records show that the Veteran's hearing was tested on two occasions. As both service department audiograms were conducted prior to October 31, 1967, the findings must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. The ISO standard is used by VA to determine hearing acuity. The Board has converted the ASA units to ISO units as shown with the conversion numbers inside the parenthesis. The numbers outside the parenthesis are the numbers as recorded in the service treatment records. On an audiogram on November 30, 1965, the puretone thresholds in decibels at 500, 1000, 2000, 3000, and 4000 Hertz were 0 (15), -5 (5), -5 (5), -5 (5), and -5 (0) respectively, in the right ear; and 5 (20), -5 (5), 0 (10), -5 (5) and 5 (10), respectively, in the left ear. On an audiogram on October 20, 1967, the puretone thresholds in decibels at 500, 1000, 2000, and 4000 Hertz were 10 (25), 0 (10), 0 (10), and 0 (5) respectively, in the right ear; and 0 (15), 0 (10), 0 (10) and 0 (5), respectively, in the left ear. Any results for 3000 Hertz were not recorded. After service, an audiogram was conducted by the Veteran's employer in March 2002. It was noted that the Veteran had worked for the company for 10 years and that the Veteran used earplugs and earmuffs as hearing protection. The Veteran gave a history of noise exposure in the military and outside of work. The results show that the puretone thresholds in decibels at 500, 1000, 2000, 3000, and 4000 Hertz were 20, 20, 10, 10, and 10, respectively, in the right ear; and 25, 0, 5, 10, and 60, respectively, in the left ear. In June 2005, a private healthcare provider stated that the Veteran had been treated since August 1994, but not for hearing problems. In April 2006 the Veteran stated that he had always used hearing protection when exposed to loud noise, even at social events, and pointed out that protecting one's hearing at his place of business was mandatory when going into areas with potentially damaging noise. He could not recall ever having been exposed to noise other than in the military. A private physician examined the Veteran in January 2009. The diagnosis was bilateral sensorineural hearing loss. The physician expressed the opinion that hearing loss was the result of exposure to small arms fire during military service. In a statement in June 2011, the Veteran described his in-service noise exposure and reported that he had experienced tinnitus on a consistent basis since then. The Veteran stated that he was careful to protect his hearing, because of tinnitus. On VA examination in January 2012, the puretone thresholds in decibels at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the right ear were 25, 20, 15, 25, and 40, respectively; and in the left ear, 25, 5, 15, 65, and 65, respectively. The puretone threshold average was 25 in the right ear and 38 in the left ear. Speech discrimination was 32 percent in the right ear and 26 percent in the left ear. The VA examiner found that tinnitus was related to service, and the RO subsequently granted service connection for tinnitus. In November 2012, the Board sought a medical opinion from the Veterans Health Administration, but in the request the Board incorrectly stated that the Veteran's hearing was normal at separation, when in fact there was a 25 decibel loss at 500 Hertz in the right ear. Puretone threshold levels over 20 Hertz meet the definition of "impaired hearing," but not necessarily a hearing loss disability under 38 C.F.R. § 3.385. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (citing as authority Current Medical Diagnosis and Treatment, 110-11 (Stephen A. Schroeder et al. eds. (1988)). In December 2012, a VHA physician's assistant responded to the Board's request. As the VHA expert was given the incorrect facts, the Board requested a second opinion from an audiologist to review the record and furnish an opinion on the following questions: Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), less likely than not (probability less than 50 percent) that the current hearing loss disability was related to noise exposure in service. In the alternative, whether it is more likely than not (probability greater than 50 percent), as likely as not (probability approximately 50 percent), or less likely than not (probability less than 50 percent) that the current hearing loss disability was caused by or aggravated by service-connected tinnitus. The Board informed the VHA expert that the Veteran was competent to describe impaired hearing in and after service and that the Board found the Veteran's statements about impaired hearing in service and since service credible. Also, the Board asked the VHA expert to comment on the 25 decibel threshold at 500 Hz in the right ear in service and the significance of any threshold shifts seen from entrance to separation from service. In May 2013, the VHA expert responded. The VHA expert stated that he had reviewed the Veteran's file. The VHA expert noted that the threshold of 25 db was audiometrically within normal limits for hearing sensitivity in the adult population. The VHA expert concluded that hearing loss was not shown at entrance or separation from service. The VHA expert stated that there was no significant shift in hearing sensitivity during service. The VHA expert cited to the Institute of Medicine report that found no scientific evidence that permanent hearing loss directly attributable to noise exposure will develop long after the noise exposure. The VHA expert stated that there was no scientific basis on which to conclude that the current hearing loss was caused by or the result of military service, including military noise exposure. The VHA expert stated that it was more likely that hearing loss was age-related or possibly related to occupational or recreational noise exposure. The VHA expert stated that there was no medical evidence to suggest that tinnitus caused or aggravated hearing loss, rather tinnitus was often observed in isolation or as a possible symptom of hearing loss. Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). As the Veteran did not serve in combat, the combat provision of 38 U.S.C.A. § 1154(b) does not apply. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the finder of fact (i.e. admissible); while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. Credible evidence is that which is plausible or capable of being believed. Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, whether the evidence tends to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, it has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Analysis The Veteran asserts that he was exposed to a significant amount of small arms fire during qualifications and on the shooting range. 38 C.F.R. § 3.303(a) (Affirmatively Showing Inception in Service) 38 C.F.R. § 3.303(b) (Chronicity and Continuity) In service the Veteran was trained as a military policeman and he was an expert marksman. Also, the Veteran stated that he participated in shooting competition, because of his marksmanship and the Veteran is competent to describe noise exposure during service, which is within the realm of the Veteran's personal experience, and his statements as to noise exposure is consistent with the circumstances of his service as shown by his service records, which is satisfactory evidence that the Veteran experienced noise exposure during service. See 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). The Veteran's noise exposure in service answers the question of what happened, but does not answer the questions of a current disability, that is, a bilateral hearing loss disability under 38 C.F.R. § 3.385, or of a relationship or nexus to noise exposure in service and a current hearing loss disability. Competent and credible evidence is still required to establish a current hearing loss disability and nexus to noise exposure in service. The service treatment records show that on audiograms the decibel thresholds for the tested frequencies of 1000, 2000, 3000, and 4000 Hz were below 40 decibels at any one frequency and below 26 decibels at three frequencies. While there was 25 decibel threshold at 500 Hz in the right ear on the separation audiogram, a hearing loss disability under 38 C.F.R. § 3.385 was not shown in service. A hearing loss disability of the sensorineural hearing type is recognized as "chronic" disability under 38 C.F.R. § 3.309(a), and the provisions of 38 C.F.R. § 3.303(b), pertaining to chronicity and continuity of symptomatology apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of a chronic disability in service there is required a combination of manifestations sufficient to identify the disability and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). Although there was evidence of some degree of impaired hearing at 500 Hz in the right ear, it was an isolated finding on a single audiogram on separation examination, but not a hearing loss disability under 38 C.F.R. § 3.385, and there was otherwise normal hearing in the right and left ear on the separation audiogram. For this reason, the service treatment record lacks the documentation of the combination of manifestations sufficient to identify a bilateral hearing loss disability under 38 C.F.R. § 3.385 and insufficient observation to establish chronicity at the time. Considering the service treatment records only, affirmative inception of a chronic hearing loss disability under 38 C.F.R. § 3.385 was not shown, but service connection may still be established by continuity of symptomatology after service under 38 C.F.R. § 3.303(b). While a bilateral hearing loss disability was not affirmatively shown to be present in service and the evidence is insufficient to establish chronicity during service, the Veteran is competent to describe noise exposure and symptoms of impaired hearing in service and since service. 38 C.F.R. § 3.159; Layno, at 71. To this extent, the Veteran's lay statements of impaired hearing since service is competent evidence of postservice continuity of symptomatology. The Veteran asserts that his current hearing loss disability is a continuation of the impaired hearing he experienced in service, which is an expression of a causal relationship or nexus between the current disability and continuity of symptoms. As the statement is an inference based on facts, it is an opinion rather than a statement of fact. The Veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addition to describing symptoms of impaired hearing, which is capable of lay observation, the Veteran as a lay person is competent to identify a simple medical condition, or describe a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The question then is whether the Veteran as a lay person is competent to offer an opinion on the causal relationship or nexus between the current bilateral hearing loss disability and the postservice symptomatology. A bilateral hearing loss disability under 38 C.F.R. § 3.385 is not simple medical condition the Veteran is competent to identify unlike observing some degree of impaired hearing, because the diagnosis falls outside the realm of common knowledge of a lay person, that is, the diagnosis cannot be made based on mere personal observation. And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to identify a bilateral hearing loss disability under 38 C.F.R. § 3.385. Also a bilateral hearing loss disability under 38 C.F.R. § 3.385 is not a type of condition under case law that has been found to be capable of lay observation. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfeet are capable of lay observation); see McCartt v. West, 12 Vet. App. 164, 167 (1999) (a skin condition is capable of lay observation; see Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus is capable of lay observation); see Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); and see Jandreau, at 1377, n. 4 (a lay witness is capable of diagnosing a dislocated shoulder or a simple medical condition, for example a broken leg, but not, for example, a form of cancer). Applying the guidance of current case law, a bilateral hearing loss disability under 38 C.F.R. § 3.385 is more analogous to an internal process such as rheumatic fever rather than flatfeet, a skin condition, tinnitus, varicose veins, a dislocated shoulder, or a broken leg. For this reason, a bilateral hearing loss disability under 38 C.F.R. § 3.385 is not a type of condition under case law that has been found to be capable of lay observation. As a bilateral hearing loss disability under 38 C.F.R. § 3.385 is not the type of condition that can be identified based on personal observation either as a simple medical condition under Jandreau, or by case law, any inference based on what is not personally observable cannot be competent lay evidence. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the causal relationship or nexus between the current hearing loss disability under 38 C.F.R. § 3.385 and the continuity of symptoms that the Veteran avers. For these reasons, the Veteran lay opinion is not competent evidence of a causal relationship or nexus between the current disability and the postservice symptomatology. Since the Veteran's lay opinion is not competent evidence, the lay opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim based on continuity of symptomatology. As the evidence is not admissible, the Board need not reach the credibility of the evidence. Although service connection is not established under either 38 C.F.R. § 3.303(a) or by chronicity or by continuity of symptomatology under 38 C.F.R. § 3.303(b), service connection may still be established based on an initial diagnosis after service, when all of the evidence, including that pertinent to service, shows that the disability was incurred in service. 38 C.F.R. § 3.303(d). 38 C.F.R. § 3.303(d) (Post Service Diagnosis) Where, as here, there is a question of the presence or a diagnosis of a hearing loss disability under 38 C.F.R. § 3.385, and as a bilateral hearing loss disability under 38 C.F.R. § 3.385 is not the type of condition that can be identified based on personal observation either as a simple medical condition under Jandreau, or by case law, to the extent the Veteran's lay evidence is offered as proof of the presence of a hearing loss disability under 38 C.F.R. § 3.385 in service and since service and before 2002, the Veteran's evidence is not competent evidence, and the lay evidence is not admissible as evidence and cannot be considered as competent evidence favorable to the claim. As the Veteran's lay evidence is not competent evidence on the material issues of fact, pertaining to a postservice diagnosis, applying 38 C.F.R. § 3.303(d), the Board looks to the medical evidence. Medical Evidence Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. As for the Veteran reporting a contemporaneous medical diagnosis, a hearing loss disability under 38 C.F.R. § 3.385 by audiogram was first documented in 2002, more than 30 years after separation from service in 1968 and well beyond the one year presumptive period for a sensorineural hearing loss disability as a chronic disease under 38 C.F.R. §§ 3.307 and 3.309. As for symptoms described by the Veteran that later support a diagnosis by a medical professional, the medical evidence consists of a medical opinion in favor of the claim by a private physician and a medical opinion against the claim by a VHA expert. The private physician and the VHA expert are qualified through education, training, or experience to diagnose and to offer a medical opinion. The probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, and whether the expert applied valid medical analysis to the significant facts of the case in order to reach the conclusion rendered in the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-3 (2008). The medical evidence in favor of the claim is the opinion of a private physician, who diagnosed bilateral sensorineural hearing loss, which was attributed to noise exposure in service. The medical evidence against the claim is the opinion of a VHA expert. The VHA expert stated that hearing loss was not shown at entrance or on separation from service, and that there was no significant shift in hearing sensitivity during service. The VHA expert stated that the threshold of 25 decibel was audiometrically within normal limits for hearing sensitivity in the adult population. The VHA expert cited to the Institute of Medicine report that found no scientific evidence that permanent hearing loss directly attributable to noise exposure will develop long after the noise exposure. The VHA expert stated that there was no scientific basis on which to conclude that the current hearing loss was caused by or the result of military service, including military noise exposure. The VHA expert stated that it was more likely that hearing loss was age-related or possibly related to occupational or recreational noise exposure. The VHA expert stated that there was no medical evidence to suggest that tinnitus caused or aggravated hearing loss, rather tinnitus was often observed in isolation or as a possible symptom of hearing loss. The Board finds that the opinion of the VHA expert is persuasive evidence, which opposes, rather than supports, and outweighs the private medical opinion. Unlike the private physician, the VHA expert cited to a study of the Institute of Medicine to support the conclusion reached in the opinion that there was no scientific evidence that permanent hearing loss directly attributable to noise exposure developed long after the noise exposure. The only medical evidence addressing secondary service connection is the opinion of the VHA expert, who reported that there was no medical evidence to suggest that tinnitus caused or aggravated hearing loss, rather tinnitus was often observed in isolation or as a possible symptom of hearing loss [not a hearing loss disability under 38 C.F.R. § 3.385]. The opinion of the VHA expert is evidence against the claim and the evidence is uncontroverted. On the basis of the evidence of record, the Board concludes that the preponderance of the evidence is against the claim of service connection for a bilateral hearing loss disability on a direct and secondary basis. 38 U.S.C.A. § 1110 and 38 C.F.R. §§ 3.303(d) and 3.310. As the preponderance of the evidence is against the claim, the benefit-of-the doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for a bilateral hearing loss disability is denied. ____________________________________________ George E. Guido, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs