Citation Nr: 1338744 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 12-15 615 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from May 1968 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of February and April 2012 rating actions by the Department of Veterans Affairs (VA) Regional Office (RO) located in Cheyenne, Wyoming. In December 2012, while sitting at the RO, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the Veteran's claims folder. FINDING OF FACT The Veteran's bilateral hearing loss pre-existed his period of active military service, and was not aggravated by any disease, injury, or event during active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1153, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.3.07, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See 38 C.F.R. §§ 3.159, 3.326, 3.327 (2013). With regard to the duty to notify, when VA receives an application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). For service connection claims, proper notice of what is necessary to substantiate the claim requires that the Veteran be informed of the following 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); Quartuccio, 16 Vet. App. at 187. All notice under the VCAA should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, a delay in timing of the notice is "cured," and therefore harmless, when notice is followed by readjudication of the claim (such as through issuing a Statement of the Case or Supplemental Statement of the Case) after the claimant has had an opportunity to submit additional evidence. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). Here, prior to the initial rating decision in this matter, a November 2011 letter notified the Veteran of the elements of service connection, and also informed him of his and VA's respective responsibilities for obtaining relevant records and other evidence in support of his claim. The Veteran was also notified of the type of evidence necessary to establish a rating or effective date of an award. In addition, prior to the April 2012 rating action, the RO sent another letter in March 2012 which also provided notice of what type of information and evidence was needed to substantiate the claim, as well as the type of evidence necessary to establish a rating or effective date of an award. Therefore, the duty to notify is satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio, 16 Vet. App. at 187. VA's duty to assist under the VCAA includes helping the claimant to obtain service treatment records and other pertinent records, and performing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this regard, the Veteran's service treatment records are sparse and only consist of his enlistment examination, dated in April 1968. In a Memorandum, dated in February 2012, the RO made a formal finding on the unavailability of the Veteran's complete service treatment records. The RO noted that all procedures to obtain the Veteran's service treatment records had been exhausted. Thus, further efforts to obtain these records would be futile. See 38 U.S.C.A. § 5103A(b)(3); 38 C.F.R. § 3.159(c)(2). Nevertheless, the Veteran's claims file includes private medical records. In addition, the Veteran has not identified any other records or evidence he wished to submit or have VA obtain. Thus, the duty to obtain relevant records on the Veteran's behalf is satisfied. See 38 C.F.R. § 3.159(c). In regard to providing a medical examination or obtaining a medical opinion, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, an audiological examination was performed in March 2012. The examination report is adequate for deciding this claim. Specifically, the examiner reviewed the claims file and medical history, examined the Veteran, and provided an explanation for the opinion stated which enables the Board to make a fully informed decision. See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion"); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). Accordingly, VA's duty to provide an examination and obtain an opinion is satisfied. See 38 C.F.R. §§ 3.159(c)(4); 3.326(a); McLendon, 20 Vet. App. at 83; Barr, 21 Vet. App. at 312. The Veteran was afforded a videoconference hearing before the undersigned VLJ in December 2012, in which he presented oral argument. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the undersigned VLJ set forth the issue to be discussed at the hearing and sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. The VLJ notified that Veteran that in order to prove his claim he had to show that his pre-existing bilateral hearing loss was aggravated during service. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of those elements. As such, the Board finds that consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. In summary, VA's duty to notify and assist under the VCAA has been satisfied. The Veteran has had ample opportunity to participate in the development of his claim. See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that any error depriving a claimant of "a meaningful opportunity to participate effectively in the processing of his or her claim . . . . must be considered prejudicial")). There is no defect in the notice or assistance provided that affected the outcome of this claim or compromised the "essential fairness of the adjudication." See Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, if there were any error in the notice or assistance provided, it was harmless and no prejudice exists. See Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009) (holding that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless, and that the claimant has the initial burden of showing harm); see also 38 U.S.C.A. § 7261(b)(2) (West 2002). Accordingly, the Board may proceed with appellate review. II. Analysis The Veteran claims entitlement to service connection for bilateral hearing loss, which he argues was caused or aggravated by hazardous noise exposure during active service. For the following reasons, the Board finds that service connection is not warranted. The Board has thoroughly reviewed all the evidence of record, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The standard of proof to be applied in decisions on claims for veterans' benefits is the benefit-of-the-doubt rule set forth in 38 U.S.C.A. § 5107 (West 2002). Under this standard, a claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The preponderance of the evidence must weigh against a claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection is established with evidence showing (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); C.F.R. § 3.303(a). For the chronic diseases listed in 38 C.F.R. § 3.309(a) (2013), the evidentiary requirements for establishing entitlement to service connection benefits are more relaxed. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that "[t]he clear purpose of [subsection 3.303(b)] is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases," and only applies to the chronic diseases set forth in § 3.309(a)). Specifically, § 3.303(b) provides that when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of a continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden. C.F.R. § 3.303(b); Walker, 708 F.3d at 1338 (observing that a claim for a chronic disease "benefits from presumptive service connection . . . or service connection via continuity of symptomatology"). Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period." Walker, 708 F.3d at 1339. Because the Veteran has been diagnosed with bilateral sensorineural hearing loss, as reflected in the March 2012 VA examination report, and organic diseases of the nervous system, including sensorineural hearing loss, are defined as chronic diseases in section 3.309(a), the claim may be established with evidence of chronicity in service or a continuity of symptomatology after service under subsection 3.303(b). See Walker, 708 F.3d at 1338-1339. In addition, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for sensorineural hearing loss as a chronic disease may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a). This presumption may only be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). At the outset, the Board notes that the Veteran's service treatment records are sparse and only consist of his enlistment examination, dated in April 1968. According to the National Personnel Records Center (NPRC), no other service treatment records are available. As such, there is a heightened obligation to explain findings and to carefully consider the benefit of the doubt rule in cases such as this. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing a claim, and to explain its decision when the veteran's medical records have been lost. See Ussery v. Brown, 8 Vet. App. 64 (1995). Similarly, case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). The evidence shows that the Veteran had bilateral hearing loss severe enough to be considered disabling prior to entering his period of active service, and that it was not aggravated by any disease, injury, or event during active service. In this regard, a veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 C.F.R. § U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). With regard to the Veteran's period of active service, the April 1968 enlistment examination report includes an audiogram showing puretone thresholds in the right ear of 10 decibels at 500 Hertz, 5 decibels at 1000 Hertz, 5 decibels at 2000 Hertz, and 45 decibels at 4000 Hertz. In the left ear, he had puretone thresholds of 0 decibels at 500 Hertz, 0 decibels at 1000 Hertz, 10 decibels at 2000 Hertz, and 45 decibels at 4000 Hertz. Impaired hearing is considered a disability under VA law, in relevant part, when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater. 38 C.F.R. § 3.385. Thus, the April 1968 enlistment examination shows that the Veteran had bilateral hearing loss for VA purposes on entry into active duty. See id. Moreover, the Veteran was diagnosed with defective hearing, and his physical profile, or "PULHES" profile, in this report also reflects a numerical designation of "2" under "H," which means that the Veteran was found to have a hearing defect requiring some activity limitations. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (citing to then Army Regulation 40-501, Para. 9-3(b)(1)-(6), Change 35 (Feb. 9, 1987), now Para. 7-3(d)(2) (August 4, 2011)). Because the Veteran's bilateral hearing loss was noted at entry, he is not considered sound at entry with regard to his hearing acuity, and service connection may only be granted for bilateral hearing loss based on aggravation due to an in-service disease, injury, or event, or a permanent increase during service. See 38 U.S.C.A. §§ 1111, 1153; 38 C.F.R. § 3.306(b). A preexisting injury or disease will be presumed to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; § 3.306(a); Townsend v. Derwinski, 1 Vet. App. 408 (1991). Thus, there is a presumption of aggravation when disability from a pre-existing injury or disease increases during service. See id. When the presumption of aggravation applies, it may only be rebutted by clear and unmistakable (obvious or manifest) evidence, such as medical evidence showing that any increase in disability was due to the natural progress of the preexisting condition. 38 C.F.R. § 3.306(b). A flare-up of symptoms, in the absence of an increase in the underlying disability, does not constitute aggravation of the disability. Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991); see also Green v. Derwinski, 1 Vet. App. 320, 323 (1991) (evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation). Further, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). The preponderance of the evidence shows that the Veteran's bilateral hearing loss did not increase during active service. The Board recognizes that with the exception of the Veteran's April 1968 enlistment examination, his remaining service treatment records are not available to review, including his separation examination. Nevertheless, in the December 2012 videoconference hearing, when asked if he noticed a worsening of his hearing loss during service, the Veteran responded "no", that he did not notice any in-service worsening of his hearing loss. The Veteran reported that it was not until subsequent to his discharge, and after he was married and had children, that he started to notice problems with his hearing. According to the Veteran, he noticed that he had trouble hearing his children. The Board further observes that the Veteran has submitted a private medical record which shows that in January 1976, approximately 5 years after his discharge, the Veteran underwent an audiological evaluation for his employment at the United States Department of the Interior. At that time, he noted that he was in the North Dakota National Guard and worked on helicopters. Audiometric testing was performed and reported to show puretone thresholds in the right ear of 5 decibels at 500 Hertz, 10 decibels at 1000 Hertz, 15 decibels at 2000 Hertz, 30 decibels at 3000 Hertz, and 45 decibels at 4000 Hertz. In the left ear, puretone thresholds were of 10 decibels at 500 Hertz, 5 decibels at 1000 Hertz, 25 decibels at 2000 Hertz, 45 decibels at 3000 Hertz, and 50 decibels at 4000 Hertz. The diagnosis was bilateral mild to moderate hearing loss from 3000 to 8000 Hertz. The examiner stated that hearing protection was needed. Thus, when comparing the January 1976 audiometric results with the April 1968 audiometric results, the Veteran's right ear hearing loss at 4000 Hertz remained the same at 45 decibels. In addition, while his left ear hearing loss at 4000 Hertz worsened, it only changed 5 decibels from 45 to 50 decibels. Moreover, while there was some worsening of hearing loss in the relevant frequencies, the worsening was not significant except at 3000 Hertz. In this regard, as noted below, the examiner from the March 2012 VA examination compared the Veteran's audiometric results from his entrance examination in April 1968 with the private post-service audiometric results from January 1976 and concluded that the Veteran's hearing had not changed significantly except for a decrease at 3000 Hertz. Thus, given that there was no significant change in the Veteran's hearing from 1968 to 1976, it follows that there was no significant change in his hearing during his period of active service from May 1968 to May 1971. Accordingly, because there was no permanent increase of bilateral hearing loss during service, the presumption of aggravation does not apply. See 38 U.S.C.A. § 1153; § 3.306(a). The preponderance of the evidence weighs against a finding that the Veteran's pre-existing bilateral hearing loss was aggravated by in-service noise exposure during his period of active service. The record shows that the Veteran's Military Occupational Specialty (MOS) was as a helicopter repairman. At the March 2012 VA examination, the Veteran reported being exposed to loud noise from running engines and auxiliary equipment without hearing protection. The examiner stated that he had reviewed the Veteran's claims file including the Veteran's enlistment examination report, in addition to private hearing tests provided by the Veteran. Specifically, the Veteran provided a hearing test completed by his employer from 1976 and a hearing test from Beltone from which hearing aids were ordered by his employer for workman's compensation. The Veteran was in the Army for 3 years and served in Vietnam in supply. He also served in the Army National Guard for 4 years and worked on helicopters. In the private sector, the Veteran worked for Land Reclamation as a surveyor and worked as a heavy equipment operator with and without ear protection. Audiological testing showed puretone thresholds in the right ear of 5 decibels at 500 Hertz, 40 decibels at 1000 Hertz, 65 decibels at 2000 Hertz, 70 decibels at 3000 Hertz, and 80 decibels at 4000 Hertz. In the left ear, puretone thresholds were of 25 decibels at 500 Hertz, 40 decibels at 1000 Hertz, 20 decibels at 2000 Hertz, 70 decibels at 3000 Hertz, and 75 decibels at 4000 Hertz. The diagnosis was bilateral sensorineural hearing loss. The examiner opined that it was less likely than not that the Veteran's bilateral hearing loss was caused or aggravated by active service. The examiner recognized that the Veteran had bilateral hearing loss upon entrance into the military. He also recognized that there was no available separation examination to review. Nevertheless, the examiner stated that in 1976, approximately 5 years after the Veteran's discharge, the Veteran's hearing had not changed significantly except for a decrease at 3000 Hertz. During that 5-year period, the Veteran was still in the Guard working around helicopters which may have contributed to his hearing loss. According to the examiner, it was also significant that the Veteran's employer bought him hearing aids through workman's compensation which would have indicated that the Veteran's hearing had become worse because of his civilian job. The March 2012 VA examiner's opinion carries a lot of weight in the Board's determination, as it is supported by an explanation that is consistent with the evidence of record, and is based on a review of the pertinent medical history and the clinical findings made on examination. See Nieves-Rodriguez, 22 Vet. App. at 304 (holding that the probative value of medical opinion comes from its reasoning); Prejean v. West, 13 Vet. App. 444, 448 (2000) (holding that the Board may determine the probative value of medical opinions based on their detail, the persuasiveness of their opinions, and the physicians' access to a veteran's medical records). The Board recognizes that the examiner noted that the Veteran's period of time in the National Guard may have contributed to his hearing loss. However, this statement does not show that the Veteran's pre-existing bilateral hearing loss was aggravated by in-service noise exposure. Rather, the examiner was referring to a period of time which occurred after the Veteran's period of active service. Ultimately, the examiner concluded that the Veteran's pre-existing bilateral hearing loss was not aggravated beyond normal progression during his period of active service. This opinion addresses the pertinent aggravation question and it opposes, rather than supports, the Veteran's claim. The Veteran has not submitted any competent evidence showing that his pre-existing bilateral hearing loss was aggravated by in-service noise exposure. The only evidence he has submitted supporting his contention that his bilateral hearing loss was aggravated by in-service noise exposure is lay statements from his wife and children. As lay people without appropriate medical expertise, their and the Veteran's opinions asserting such a relationship does not constitute competent evidence supporting his claim, as this is a medical determination that is too complex to be made based on lay observation alone. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature"); Layno v. Brown, 6 Vet. App. 465, 469- 71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Moreover, their opinions are outweighed by the findings of the VA audiologist to the contrary. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation); see also Layno, 6 Vet. App. at 469. Accordingly, the preponderance of the evidence shows that the Veteran's pre-existing bilateral hearing loss was not aggravated by his period of active service. Therefore, service connection is not warranted. See 38 U.S.C.A. §§ 1111, 1153; 38 C.F.R. § 3.306(b); see also Shedden, 381 F.3d at 1166-67. In summary, the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for bilateral hearing loss must be denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs