Citation Nr: 1334373 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 07-39 298 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The Veteran served on active duty from August 1955 to July 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for bilateral hearing loss. In February 2008, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO. In May 2009, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). Transcripts of these hearings are associated with the claims file. In July 2009, the Board remanded the issue of entitlement to service connection for bilateral hearing loss for further evidentiary development, and in March 2010, the Board denied the claim. The Veteran appealed the Board's determination to the Court of Appeals for Veterans Claims (Court) and in June 2011 the Court vacated the portion of the Board's March 2010 decision that denied the Veteran's hearing loss claim. The Court's action was in response to the May 2011 Joint Motion for Remand (JMR). In January 2012, the Board again denied the hearing loss claim. The Veteran appealed the Board's determination to the Court of Appeals for Veterans Claims (Court) and in February 2013 the Court again vacated the Board's March 2010 decision. The Court's action was in response to the February 2013 JMR which will be discussed below. In May 2013, the Board requested a medical expert opinion from an otolaryngologist with the Veterans Health Administration (VHA). The requested opinion was subsequently received in July 2013. The Veteran was provided with a copy of this opinion in August 2013, and was given 60 days in which to send any additional evidence or argument regarding the case pursuant to 38 C.F.R. § 20.903; and responses were received by the Veteran and his accredited representative in September 2013. FINDING OF FACT A hearing loss disability was not shown in service and the most probative evidence indicates the Veteran's current hearing loss disability is not related to his active service. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by active service, nor may such be presumed. 38 U.S.C.A. §§ 1101, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in an August 2006 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. This letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, post-service treatment records, VA examination reports, a VHA opinion, hearing testimony, and lay statements. The Veteran has been afforded hearings before a DRO and a VLJ in which he presented testimony in support of his hearing loss claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the officers who chair a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the DRO and VLJ identified the issue to the claimant and asked specific questions directed at identifying whether the Veteran met the criteria for service connection. Additionally, the Veteran volunteered his treatment history and symptoms during and since service. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the hearings, to include during his appeals to the Court. The hearings focused on the elements necessary to substantiate the claim, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for VA examinations. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to have caused injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2012). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1131, 1133 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels (dB) or greater; the auditory thresholds for at least three of these frequencies are 26 dB or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2013). "[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. at 157. The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that his current bilateral hearing loss is related to the acoustic trauma he experienced while serving as jet mechanic during his four years in the Air Force. He alleges that he had inadequate ear protection while exposed on a daily basis to jet engine noise during the performance of his military duties. He has stated that he first began to notice hearing loss during his active service and that it has continued since service. The Veteran's DD Form 214 confirms that his military occupational specialty in the Air Force was as a jet aircraft mechanic. The Board does not question the Veteran's contention that he was exposed to noise in service. At his service entrance examination in August 1955, the Veteran's ears were evaluated as normal, and he reported no ear trouble. No audiogram was conducted. Service treatment records from March 1956 and May 1956 reflected treatment and removal of a sebaceous cyst on his left ear. A January 1958 service treatment record reflected that the Veteran complained of ringing in the ears from working on the flight line, and noted that he wanted a change of assignment. In February 1958, a service treatment record noted that cerumen was removed from both of his ears. In August 1958, a service treatment record documented the Veteran's complaint of ear trouble, stating that he could not hear out of his left ear. A March 1959 hearing conservation data report documented that the Veteran had endured noise exposure as part of his military duties for three hours per day for three to five months, and it was noted that he had always or frequently worn ear protection. [During the course of this appeal, the Veteran has suggested that the ear protection provided at this time in history was inadequate.] The March 1959 hearing conservation data report also noted that the Veteran had been exposed to noise for three years during a previous job, and that he was exposed to gunfire during basic training, hunting, and target practice. Audiological testing at that time in March 1959 showed puretone thresholds of 10 dB or less. The Board observes that service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. After conversion to ISO units, the 1959 audiological testing showed puretone thresholds of 25 dB at 500 Hz bilaterally, with the remaining thresholds showing 20 dB or less. A service treatment record from May 1959 noted that a cyst was removed from behind the Veteran's right ear. At his service separation examination in July 1959, the Veteran's ears were evaluated as normal, but no audiogram was performed. There is no suggestion on this report that the Veteran mentioned experiencing hearing loss at this time. The Veteran's claims folder is devoid of evidence showing treatment related to hearing loss between his 1959 separation from service and 2001. In September 2003, it was noted that his right ear sensorineural hearing loss was of unknown origin and that a magnetic resonance imaging (MRI) performed in 2002 showed no acoustic neuroma. In June 2004, the Veteran was assessed with Meniere's disease. The Veteran underwent a VA audiological examination in November 2006. On that occasion, he reported military noise exposure while serving as a jet aircraft mechanic in service with use of ear plugs for hearing protection. He denied any post-service occupational noise exposure, but noted recreational noise exposure from years of hunting. He stated that his right ear hearing ability had been "out completely" for approximately three years. Audiological testing revealed profound sensorineural hearing loss in the right ear and a mild to moderately severe sensorineural hearing loss in the left ear. The VA audiologist opined that the Veteran's current bilateral hearing loss was not related to military service. Just over one week later, in an addendum to the November 2006 examination, an ENT referral was recommended to rule out bilateral Meniere's disease as being the cause of his current bilateral hearing loss. The Veteran underwent another VA audiological examination in October 2007. On that occasion, he reported military noise exposure while serving as a jet aircraft mechanic in service, and stated that he remembered temporary tinnitus at night after a day of noise exposure in service. He denied any post-service occupational noise exposure, but noted some recreational noise exposure from hunting. It was again noted that he had been diagnosed with Meniere's disease by a VA medical facility in 2004. Audiological testing revealed normal hearing through 2000 Hz bilaterally, dropping to a moderate/severe high frequency sensorineural hearing loss in the left ear and a moderate to severe sensorineural hearing loss in the right ear. The VA audiologist opined that the Veteran's current bilateral hearing loss was not from the service and noted that the asymmetrical right ear hearing loss had a likely etiology of Meniere's disease. In February 2008 and in May 2009, the Veteran provided hearing testimony before a DRO at the RO, and before the undersigned VLJ, respectively. At both hearings, the Veteran suggested that he had continuous hearing loss from the time of his active service through to the present, worsening over time. Following the May 2009 hearing, the Board remanded the matter for additional development. Pursuant to the Board's July 2009 remand, the Veteran underwent a VA audiological examination by an audiologist in August 2009 and a VA ear disease examination by an otologist in October 2009. At the August 2009 examination, the audiologist noted that the Veteran's asymmetrical hearing loss and tinnitus were consistent with Meniere's disease. Audiological testing confirmed a flat, moderately severe to severe sensorineural hearing loss in the right ear, and normal hearing through 2000 Hz sloping to a severe high frequency sensorineural hearing loss in the left ear. The audiologist noted that the audiogram at separation indicated hearing within normal limits in both ears even when converted from ASA to ANSI/ISO dB units. [The Board notes the examiner reported the March 1959 audiogram as being the separation audiogram; however, as it is the only audiogram in service and was conducted in the same year as separation, the audiologist is clearly referring to the March 1959 audiogram]. The examiner opined that, given the clear evidence of normal and symmetrical hearing thresholds at the time of separation from service, the Veteran's current hearing loss was not related to noise exposure during service. The audiologist went on to state that, given the diagnosis of Meniere's disease in recent years, it did not seem likely that the corresponding marked decline in hearing had anything to do with noise exposure over 40 years ago, but that she was deferring to the otologist on that question. At the October 2009 examination, the Veteran reported that he worked around jet engines on a daily basis in the Air Force and reiterated that his bilateral hearing loss began in service and had become progressively worse since his discharge from service. Other than his four years of military noise exposure, it was noted that he used to hunt occasionally. The otologist noted that the Veteran's Meniere's disease was a condition of more recent onset and was not related to his military service. After a thorough review of the claims file, detailed discussion of service treatment records, and examination of the Veteran, the otologist opined that the Veteran's current hearing loss was not caused by or a result of his service noise exposure, wax impaction, or complaints of ear trouble in service. The otologist went on to state that the Veteran's hearing was normal at the time of his service separation examination and that he also had no ear complaints at that time. The Board's January 2012 denial of service connection was vacated by the Court because the JMR noted "the examiners did not explain why the findings of normal hearing in service meant that the [Veteran's] current disability is not related [to service]." The JMR also noted that the 2009 VA examiner appeared to suggest that the diagnosis of Meniere's disease was the cause of his hearing loss rather than noise exposure, but did not explain how Meniere's disease caused the bilateral hearing loss, rather than only the right ear hearing loss. In view of the February 2013 JMR, the Board requested a VHA opinion to address the Veteran's claim of service connection for bilateral hearing loss. The VA otolaryngologist opined that it is much less likely as not (less than 25% probability) that the Veteran's current bilateral hearing loss arose during service or was caused by in-service noise exposure. He explained that hearing tests have an inherent 5 dB retest variability, and, for complete accuracy, an audiogram should be performed with no significant noise exposure within the prior 48 hours. The reason is that loud noises may cause a temporary threshold shift giving the patient subjective and objective findings of hearing loss which will resolve in 48 hours if there was no additional noise exposure. The otolaryngologist could not ascertain when the Veteran was last exposed to noise levels prior to the March 1959 audiogram but, if he had been exposed within 48 hours of the audiogram, the results would be the same or better. The otolaryngologist also pointed out that noise-induced hearing loss is worse in the high frequencies (above 2000 Hz and often with a 4000 Hz notch); however, the Veteran's hearing in this rage was reportedly normal on the March 1959 audiogram. The otolaryngologist opined that the March 1959 audiogram performed within six months of separation was objectively normal. The otolaryngologist stated that the in-service jet engine noise that the Veteran experienced could, at most, produce a 10 to 15 dB loss during service. Using generally utilized calculations for hearing impairment, this would be considered 0% impairment. See AAO 1979 Hearing Handicap Calculators; 1997 Noise Induced Hearing Loss and Occupational Hearing Loss Calculator. With this evidence, the examiner stated that no hearing professional would conclude that an individual with subjective report of hearing loss had sustained permanent hearing loss during this time frame. The otolaryngologist noted the March 1959 hearing conservation data report which documented that the Veteran had endured noise exposure as part of his military duties for three hours per day for three to five months, and it was noted that he had always or frequently worn ear protection. He stated that reasonable ear protection would prevent hearing loss for someone who only endured this amount of noise exposure, unless that individual were very sensitive. The otolaryngologist also noted that hearing loss due to excessive earwax will resolve when it is removed, and therefore, could not be the cause of any permanent hearing loss. He also stated that sebaceous cysts removed in 1956 and 1959 would not have any influence on the Veteran's hearing. The otolaryngologist also noted the Veteran's complaints of hearing loss in service after a day of in-service noise exposure. The otolaryngologist noted that this phenomena is consistent with noise-induced temporary threshold shift, and it is not a specific predictor of permanent hearing loss. The otolaryngologist also acknowledged the Veteran's opinion that it takes time for someone's hearing to become abnormal after the damage has been done. The otolaryngologist stated that there is no medical support for this opinion, as noise-induced hearing loss does not continue after the individual has been removed from the offending sound source. He concluded by noting that the Veteran's additional hearing loss could be associated with hunting, aging (presbycusis), and, particularly on the right, Meniere's disease. The otolaryngologist further opined that Meniere's disease does not commonly cause bilateral hearing loss. He stated that most patients have the condition in only one ear, but when it does involve both sides, it is typically to differing degrees and at different times over a patient's life. He stated that a review of the pertinent records showed that the Veteran had bilateral relatively symmetric hearing loss which significantly worsened on the right. In support of this conclusion, the examiner noted that, on audiograms conducted in March 2001, May 2002, and April 2004, the Veteran demonstrated asymmetric, additional right ear hearing loss. In addition, on VA examination in November 2006, the Veteran stated that his right ear was "out completely" for three years at that time, and the audiogram at that time is consistent with Meniere's disease involving the right ear. The otolaryngologist indicated that that the Meniere's disease is superimposed on the Veteran's bilateral hearing loss due to aging and subsequent noise exposure from hunting demonstrated in earlier audiograms. The VA otolaryngologist acknowledged that the Veteran believes he does not have Meniere's disease. However, the otolaryngologist noted that evaluations and audiograms conducted between March 2004 and June 2004 were most consistent with the diagnosis of Meniere's disease. The otolaryngologist also noted that the Veteran's right ear hearing loss developing over a relatively short timeframe, the normal otoscopic findings, dizziness, normal magnetic resonance imaging (MRI) examinations (excluding other causes such as acoustic neuroma), clinical course, and response to treatment, indicate that the Veteran has Meniere's disease. The otolaryngologist also noted that there is no medical evidence to support the proposition that Meniere's disease is a sequelae of prior noise exposure. The Board acknowledges the Veteran's assertion throughout the course of this appeal that he currently suffers from bilateral hearing loss that initially manifested during his active service and has continued ever since, and that this current bilateral hearing loss is causally connected to the noise exposure experienced during his active service. In making all determinations, the Board must fully consider the lay assertions of record. In this case, the Board finds that Veteran is indeed competent to report that he noticed instances of difficulty hearing during service and since service. He, however, does not have the medical expertise required to determine whether the hearing loss he reportedly experienced during service or since service was of such level as to constitute a hearing loss disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, determining the presence of hearing loss and whether such rises to the level of a disability for purposes of 38 C.F.R. § 3.385 requires audiological testing and a medical professional to interpret the results. Here, the VA examiners and the VA otolaryngologist have determined his testing during service revealed hearing within normal limits. Such opinions are consistent with the provisions of 38 C.F.R. § 3.385 which define hearing loss disability for VA purposes. Thus, while the Veteran alleges that he suffered from bilateral hearing loss during and since service, his opinion on this point is afforded significantly less weight than the in-service medical records and the opinions of the VA examiners and VA otolaryngologist. In sum, the most probative evidence indicates that the Veteran did not have hearing loss disability during service or for many years thereafter. As noted above, when audiometric test results in service do not meet the regulatory requirements for establishing a hearing loss "disability" at that time, a veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley, 5 Vet. App. 155, 160 (1993). Here, the Veteran's hearing loss disability was not shown until decades after service. Whether the symptoms he experienced in service or following service are in any way related to his current hearing loss disability requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). In this regard, hearing loss can have many causes and medical expertise is clearly needed for such a determination. Indeed, his outpatient treatment records at one point noted his hearing loss was of unknown etiology, and there has been a marked decline in his hearing from the initial post-service finding in 2001 (noting some loss only above 2000 Hz) to complete loss in the right ear contemporaneous with the date his claim was filed. The drastic change of the Veteran's hearing level from 1959 (interpreted by the VA otolaryngologist as being borderline normal at 500 Hz and normal hearing throughout the remainder of the test), to normal to moderate hearing loss above 2000 Hz in March 2001, and profound loss in the right and mild to moderately severe loss in the left ear in 2006) requires medical expertise to determine the cause. Moreover, while the Veteran contends he does not suffer from Meniere's disease, the outpatient treatment records do reflect such a diagnosis, and the VA otolaryngologist confirmed such diagnosis. The opinion of medical professionals on this point is of greater probative value than the Veteran's lay contention. See Jandreau, supra. The July 2013 VHA opinion was provided by an otolaryngologist, is based on a review of the claims file, considered the Veteran's lay assertions, and is supported by sound and detailed rationale. Thus, the Board finds that it is entitled to great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the Veteran's position). The Board also notes that the other opinions of record were consistent in finding that the current bilateral hearing loss was not etiologically linked to the Veteran's period of active duty. While the Veteran appears to sincerely believe that his current hearing loss disability is related to service, such sincerity does not overcome the probative weight of the other evidence of record. The Veteran did not complain of hearing loss at his separation from service, and the first mention of hearing loss in post-service treatment records was in 2001, despite the presence of treatment records dating since 1999 in the file. Indeed, when first presenting for ear complaints in January 2001, he did not mention hearing loss as a symptom. By March 2001 he included hearing deficit in his complaint. With the audiological findings in service being interpreted by medical professionals as reflecting hearing within normal limits, the first mention of hearing loss in post service treatment records being in 2001, and the passage of more than 40 years since service, the Board finds the Veteran's contention of having continuous hearing loss since service is simply not reliable. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence). In sum, the Board finds that the preponderance of the competent and probative evidence indicates that the Veteran did not have a hearing loss disability in service or for many years thereafter, and the most probative evidence indicates the Veteran's current hearing loss disability is not related to his active service. While the Board has considered the Veteran's lay contentions as to onset and etiology of his current hearing loss, the Board has accorded the medical evidence of record significantly greater probative value. Accordingly, service connection for bilateral hearing loss is not warranted on any basis. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs