Citation Nr: 1328584 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 10-14 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Appellant had periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) in the Naval Reserves from April 1954 to January 1962. He also reportedly had 89 days of active duty (AD) in the Army, which has not been verified. He appealed to the Board of Veterans' Appeals (Board/BVA) from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In support of his claims, he testified at a videoconference hearing in September 2012 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. The Board remanded the claims in October 2012 for further development, including especially to try and obtain the service treatment records (STRs) and service personnel records (SPRs) concerning the Appellant's alleged additional service in the Army on AD, to clarify exactly when he was on ACDUTRA during his prior service in the Naval Reserves, and to have him undergo a VA compensation examination for a medical nexus opinion concerning the etiology of his hearing loss and tinnitus - but particularly in terms of the likelihood these conditions are related to or date back to his service, including, if confirmed he had the additional service on AD in the Army as alleged, whether sensorineural hearing loss (SNHL) manifested to the required minimum compensable degree of at least 10-percent disabling within one year of his discharge from that additional period of service to alternatively warrant presuming it was incurred during that additional service. Please also note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Neither the claimed hearing loss nor tinnitus has been shown by competent and credible evidence to be the result of the Veteran's active military service. CONCLUSION OF LAW His claimed hearing loss and tinnitus are not shown to be due to disease or injury incurred in or aggravated by his active military service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.1, 3.6, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 A. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, including apprising him of the information and evidence that VA will obtain versus that information and evidence he is expected to provide. 38 C.F.R. § 3.159 (2012). When the claim is for service connection, this notice should include indication that a "downstream" disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007) (observing that a claim of entitlement to service connection consists of five elements: (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. So compliance with the holding in Quartuccio v. Principi, 16 Vet. App. 183 (2002), requires apprising the claimant of all five of these elements of the claim, including the "downstream" disability rating and effective date elements). See Dingess, at 486. Also, at least ideally, the notice should precede the initial adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). If, however, for whatever reason there was not notice prior to initially adjudicating the claim or, if there was, but it was inadequate or incomplete, this timing error in the provision of notice can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC) - such that the intended purpose of the notice is not frustrated, rather preserved, and the claimant is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VA notice and assistance errors are not presumptively prejudicial, even when for the sake of argument they are shown to have occurred. Rather, they must be judged on a case-by-case basis. And as the pleading party attacking VA's decision, the Veteran, not VA, bears this evidentiary burden of proof of not only establishing error, but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Here, prior to initially adjudicating his claims, so in the preferred sequence, a letter dated in September 2009 was sent to the Appellant in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). He was notified of the evidence needed to substantiate his claims, of the information and evidence that VA would obtain, of the information and evidence he was expected to provide, and told that VA would assist him in obtaining evidence, but that it was his ultimate responsibility to provide VA any evidence pertaining to his claims. He was also notified of the "downstream" disability rating criteria and effective date provisions that are pertinent to his claims if granted. Therefore, he has received all required notice regarding his underlying claims for service connection. B. Duty to Assist This additional duty includes assistance in obtaining potentially relevant records, such as STRs, SPRs, and post- service VA and private medical evaluation and treatment records, as well as the provision of an examination - including for a medical opinion - when necessary to make a decision on the claim. Indeed, with this in mind, the Board remanded these claims in October 2012 to have the Veteran undergo a VA compensation examination for a medical nexus opinion, as well as to obtain additional records concerning his service and to try and verify his alleged additional AD service in the Army. To that end, his STRs, SPRs, private treatment records, and lay statements have been associated with the claims file for consideration in deciding his appeal. The additional development of his claims, however, did not result in verification of his claimed period of AD service in the Army in 1962. A VA compensation examination nonetheless was scheduled, as requested. See 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006) and Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). However, the record reflects that he cancelled the examination. No reason for the cancellation has been provided, and neither he nor his representative has requested to reschedule the examination. Therefore, the adjudication of the claims will proceed based on the existing evidence of record. See 38 C.F.R. § 3.655. Moreover, there was compliance with the Board's October 2012 remand directives, certainly substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with remand orders, and the Board itself commits error in failing to ensure compliance). But see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (another remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). VA has provided the Veteran opportunity to submit evidence and argument in support of his claims. He has not made the Board aware of any additional evidence needing to be obtained prior to appellate review that is obtainable, so no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Service Connection A. Applicable Law In order to establish entitlement to service connection for a claimed disability, the facts must demonstrate that a disease or an injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). In addition, certain chronic diseases, including organic disease of the nervous system such as SNHL, may be presumed to have been incurred during service if they become disabling to a compensable degree (meaning to at least 10-percent disabling) within one year of separation from active military service. This presumption is rebuttable by affirmative evidence to the contrary, however. 38 U.S.C.A. §§ 1101, 1112, 1113, 11137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309(a) (2012). That an injury occurred in service alone is not enough; there must be chronic (i.e., permanent) disability resulting from that injury. If there is no showing of a resulting chronic condition during service, or this is legitimately questionable, then a showing of continuity of symptomatology after service is required to support a finding of chronicity and the claim. 38 C.F.R. § 3.303(b). The U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) has clarified, however, that this notion of continuity of symptomatology as an alternative means of showing chronicity of disease or injury in service to alternatively link the currently claimed disability to service only pertains to chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Although Walker indicated that hearing loss in general is not one of the conditions identified by § 3.309(a) and chronic, per se, so generally not subject to this continuity of symptomatology pleading and proof exception, VA accepts that a particular type of hearing loss - namely, SNHL - is covered by this VA regulation as an organic disease of the nervous system. Indeed, the Veterans Benefits Administration's (VBA's) M21-1MR has a section titled "Determining Impaired Hearing as a Disability," which includes the following note: "[SNHL] is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)." M21- 1MR III.iv.4.B.12.a. The VA Manual has the force and effect of a VA regulation. Service connection requires competent and credible evidence showing: (1) the existence of a present disability; (2) in- service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). As the Board explained when previously remanding these claims, only "Veterans" are entitled to VA compensation. 38 U.S.C.A. §§ 1110, 1131 (West 2002). The term "Veteran" means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. § 3.1(d) (2012). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury (but not disease) incurred in or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 U.S.C.A. §§ 101(21), (22), (23), (24), 106 (West 2002); 38 C.F.R. § 3.6(a),(d) (2012). To establish status as a "Veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a),(d) (2012); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The fact that a claimant has established status as a "Veteran" for other periods of service (AD, etc.) does not obviate the need to establish that he is also a "Veteran" for purposes of the period of ACDUTRA where the claim for benefits is premised on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Similarly, to achieve "Veteran" status and be eligible for service connection for disability claimed during his inactive service, the record must establish that he was disabled from an injury, though not disease, incurred or aggravated during INACDUTRA. See Mercado- Martinez, 11 Vet. App. 415, at 419; Paulson, 7 Vet. App. 466, at 470; Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Reserve and National Guard service generally means ACDUTRA and INACDUTRA, although in more recent times it also has come to include AD. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316 , 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training, sometimes referred to as "summer camp," which each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year and is often referred to as "weekend warrior" training. These drills are deemed to be part-time training. Certain presumptions that apply to periods of AD are inapplicable to periods of ACDUTRA and INACDUTRA, such as the presumptive incurrence of conditions that are considered chronic, per se, if initially manifested to a compensable degree (meaning to at least 10-percent disabling) within the initial post-service year, or regarding the presumptions of soundness and aggravation. See Smith v. Shinseki, 24 Vet. App. 40 (2010). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine whether the evidence also is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must additionally determine whether the evidence also is credible). Only if evidence is both competent and credible does it ultimately have probative value. See Layno v. Brown, 6 Vet. App. 465, 469 (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")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). The third and final step of this inquiry requires the Board to then weigh the probative value of the proffered evidence in light of the entirety of the record. Gonzales, 218 F.3d at 1380- 81. See also Baldwin v. West, 13 Vet. App. 1, 8 (1999). As observed by the Federal Circuit Court, 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). 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. 38 C.F.R. § 3.159(a)(2). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is incapable of opining on matters requiring medical knowledge. In certain instances, however, lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Just, as well, laypersons equally have been found not competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue). Competent medical evidence, as opposed to lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value in relation to the other relevant evidence in the file. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see 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"). In ultimately rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). B. Evidence and Analysis Initially, the Board notes that the Appellant has asserted that he had subsequent additional service on AD in the Army at Ft. Ord, California, and that his SPRs and STRs concerning this additional service have not been obtained and associated with his claims file for consideration. However, as already discussed, the additional development of his claims that occurred following and as a result of the Board's October 2012 remand included attempting to verify this additional service and obtaining all additional records concerning his service, whether on AD, ACDUTRA or INACDUTRA, so including even his prior service in the Naval Reserves. He does have verified service in the Naval Reserves from April 1954 to January 1962. An enlistment examination from April 1954 reflects he scored 15/15 on spoken and whispered voice testing. Pure tone thresholds were not recorded. In July 1958 he underwent an additional examination for selection as an aviation cadet. However, a complete physical was not performed as he was determined not to be aeronautically adapted for flight training due to a psychological issue. His STRs are otherwise unremarkable for any complaints, treatment, or diagnoses related to hearing loss or tinnitus. His SPRs only indicate he was on ACDUTRA on one occasion in 1954 for two weeks, and on two occasions in 1955 for one week each. A May 1957 entry reflects that he was transferred by reason of unsatisfactory attendance at drills. Private records dated in May 2010 reflect diagnoses of bilateral hearing loss and tinnitus. One entry noted hearing loss was due to aging and noise damage. In a separate entry, the treating physician recorded a history of service in Korea, and exposure to artillery and firearm noise over a period of several months. In a March 2011 statement, the Appellant reported that the loudest noises he was exposed to was during his Naval Reserve training, when he was stationed at a 5-inch gun mount without any hearing protection. He also reported having regular occupational duties of making wood and metal patterns, which involved the use of hand tools, band saws, and table saws. He wore hearing protection when performing this work. A March 2011 submission from another private physician stated that the Appellant reported tinnitus and decreasing hearing in both ears since he was exposed to artillery fire in the military. Testing revealed high frequency SNHL in both ears. The physician opined that the Appellant's history of military noise exposure was the most likely cause of his tinnitus and hearing loss. The Appellant testified at a videoconference hearing before the Board in September 2012. He stated that he believed his hearing loss and tinnitus were attributable to the noise of the 5-inch guns he was exposed to during his service. There is no disputing he has these claimed conditions. However, the overall weight of the evidence is against finding these conditions were incurred in or are otherwise related to his service. While the May 2010 private records attribute hearing loss, in part, to noise exposure during his service, the opinion is based on a history of the Appellant serving in Korea and being exposed to artillery and gunfire over the course of several months. However, his SPRs do not reflect service in Korea, and his total period of ACTDUTRA was only approximately four weeks. Therefore, this opinion is not probative. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (a medical opinion based on an inaccurate factual premise has no probative value). Similarly, the March 2011 private opinion also is not probative. Although the physician attributed current hearing loss and tinnitus to noise exposure in service, he did not provide any explanation for that conclusion. The failure to provide a basis for an opinion affects the weight or credibility of the evidence. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Generally, the degree of probative value that may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999). See also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually had examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the Veteran). So as the Court made clear in Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008), the probative value of a medical opinion comes from when there is factually accurate, fully articulated, and sound reasoning for the conclusion, not just from mere review of the claims file). See also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[a] medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Board, then, may reject a medical opinion not only that was based on an inaccurate factual premise, but also if it does not contain the required explanatory rationale. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). As the Court explained in Coburn v. Nicholson, 19 Vet. App. 427 (2006), reliance on a Veteran's statements renders a medical report not credible if the Board rejects the statements of the Veteran as lacking credibility. The opinion also does not address the Appellant's history of occupational noise exposure as a civilian, albeit reportedly with the benefit of hearing protection, nor does it reflect an awareness that military noise exposure was limited given the Appellant's service in the Naval Reserves with only limited periods of ACDUTRA. The Appellant's own statements also have been considered. However, he has not demonstrated any specialized knowledge or expertise to offer a competent medical opinion. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of hearing loss and tinnitus, it falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). So when all of this evidence is considered in combination, the Board finds that the overall weight of this evidence is against finding that the Appellant has hearing loss or tinnitus as a result of his active military service, in whatever capacity, AD, ACDUTRA or INACDUTRA. His appeal accordingly is being denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.102 regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant his claims. ORDER Service connection for hearing loss is denied. Service connection for tinnitus also is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs