Citation Nr: 18154564 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 13-11 932 DATE: December 4, 2018 ORDER Service connection for bilateral hearing loss is denied. An initial evaluation in excess of 20 percent for low back strain prior to November 27, 2017, and in excess of 40 percent thereafter, is denied. Entitlement to a total disability rating due to individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The evidence of record does not demonstrate that the Veteran has a current bilateral hearing loss disability under 38 C.F.R. § 3.385. 2. For the period prior to November 27, 2017, the evidence demonstrates that the Veteran’s forward flexion of his lumbar spine is not shown to be to 30 degrees or less; throughout the appeal period, the Veteran’s thoracolumbar spine is not shown to be ankylosed, nor is he shown to have at least 4 weeks of incapacitating episodes or physician-prescribed bedrest. 3. The Veteran’s service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 4.85, 4.86 (2017). 2. The criteria for an initial evaluation in excess of 20 percent for low back strain for the period prior to November 27, 2017, and in excess of 40 percent thereafter, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 3. The criteria for entitlement to TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 2001 to May 2005. These matters come before the Board of Veterans’ Appeals (Board) from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before a Veterans Law Judge in February 2017; that Veterans Law Judge has since left the Board and is no longer available to participate in this case. In a September 2018 letter, the Board informed the Veteran of this fact and also informed him of his right to another hearing before another Veterans Law Judge. As of this decision, the Veteran has not responded to that September 2018 letter and the Board will proceed with adjudication of his claim at this time. In July 2017, the Board remanded the matters for additional evidentiary development; those claims have been returned to the Board at this time for further appellate review. As a final initial matter, in a June 2018 rating decision, the Agency of Original Jurisdiction (AOJ) award a 40 percent evaluation for the Veteran’s lumbar spine disability, effective November 27, 2017. Accordingly, the Board has recharacterized the issue on appeal as above in order to comport with that award of benefits. Service Connection for Bilateral Hearing Loss Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) 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.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including sensorineural hearing loss (organic disease of the nervous system), may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). Under 38 C.F.R. § 3.385, impaired hearing will be considered a disability for purposes of laws administered by VA when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. The failure to meet these criteria at the time of a Veteran’s separation from active service is not necessarily a bar to service connection for hearing loss disability. A claimant “may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service.” Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993); see 38 C.F.R. § 3.303(d) (2017); Heuer v. Brown, 7 Vet. App. 379, 384 (1995). The threshold for normal hearing is from zero to 20 decibels and that higher threshold levels indicate some degree of hearing loss. Hensley, at 157; 38 C.F.R. § 3.385. On appeal, the Veteran contends that he has bilateral hearing loss caused by heavy noise exposure while in service. Turning to the evidence of record, in June 2003, during service, the Veteran was treated for hearing loss. The Veteran was diagnosed with acoustic trauma, but without evidence of rupture, perforation, or hemorrhage. Hearing conservation data recorded in September 2004 noted that the Veteran was routinely exposed to noise, but did not find significant threshold shifts. In a September 2010 VA treatment record, the Veteran “denie[d] any significant difficulty hearing” problems while describing his tinnitus history. On an audiological evaluation in October 2010, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 10 15 LEFT 15 20 20 15 20 Speech audiometry revealed speech recognition ability of 100 percent bilaterally. Based on the results of the test, the Veteran was diagnosed to have normal hearing for both ears and was not considered a hearing aid candidate. On the authorized audiological evaluation in August 2011, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 10 15 LEFT 15 20 20 15 15 Speech audiometry revealed speech recognition ability of 94 percent bilaterally. Based on the results of the test, the Veteran was diagnosed to have normal hearing for both ears. In April 2013, the Veteran reported that his hearing has gotten progressively worse. On the authorized audiological evaluation in November 2017, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 10 15 LEFT 15 15 10 10 15 Speech audiometry revealed speech recognition ability of 100 percent bilaterally. Based on the results of the test, the Veteran was diagnosed to have normal hearing for both ears. Based on the foregoing evidence, the Board finds that service connection for bilateral hearing loss must be denied at this time. The Board notes that the audiometric data of record, particularly from several VA examinations, does not demonstrate any bilateral hearing loss disability, as defined by 38 C.F.R. § 3.385, during the appeal period. Accordingly, service connection must be denied for bilateral hearing loss at this time. See 38 C.F.R. §§ 3.303, 3.385; See McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim.”); Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability). Increased Rating for the Lumbar Spine Disability Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). The Veteran has been service connected for his lumbar spine disability since August 13, 2010, which is the date on which he filed his claim for service connection. Throughout the appeal period, the Veteran’s lumbar spine disability has been assigned a 20 percent evaluation for the period prior to November 27, 2017, and a 40 percent evaluation for the period beginning November 27, 2017. He has been assigned those evaluations under Diagnostic Code 5237, which uses the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Finally, a 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5237, General Rating Formula for Diseases and Injuries of the Spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note (2). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). Alternatively, the Veteran’s lumbar spine disability may be evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, which assigns a 10 percent evaluation with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation may be assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation may be assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation may be assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest prescribed by a physician and treatment by a physician. Id. at Note (1). Turning to the evidence of record, in the September 2010 VA examination, the Veteran’s spine exhibited forward flexion to 40 degrees, extension to 20 degrees, right and left side bending to 25 degrees, right rotation to 40 degrees, and left rotation to 60 degrees. Intervertebral disc spaces were well-maintained, and there was no finding of ankylosis. In the February 2015 VA examination, the Veteran’s spine exhibited forward flexion to 60 degrees with objective evidence of pain beginning at 60 degrees, extension to 30 degrees or greater with no objective evidence of pain, right and left lateral flexion of 30 degrees or greater with no objective evidence of pain, and right and left lateral rotation of 30 degrees or greater with no objective evidence of pain. Repetitive use testing showed no decreased range of motion. IVDS was present but the Veteran had no incapacitating episodes over the past 12 months. There was no finding of ankylosis. The Veteran was diagnosed with sciatica in his bilateral lower extremities due to low back strain, for which he received separate ratings. In the November 2017 VA examination, the Veteran’s spine exhibited forward flexion to 45 degrees, extension to 30 degrees, right and left lateral flexion of 30 degrees, and right and left lateral rotation of 30 degrees. Repetitive use testing showed decreased range of motion, with forward flexion reduced to 30 degrees, and extension reduced to 25 degrees. Intervertebral disc syndrome (IVDS) was not present. There was ankylosis. The Veteran was diagnosed with lower left extremity radiculopathy due to low back strain, for which he received an increased rating for his left lower extremity sciatica. A review of the Veteran’s VA treatment records additionally does not demonstrate any evidence of forward flexion of the Veteran’s lumbar spine to 30 degrees or less or any ankylosis of the thoracolumbar spine, nor any evidence of any incapacitating episodes or any physician-prescribed bedrest. In order to assign a higher evaluation in this case for the period prior to November 27, 2017, the evidence of record has to demonstrate that the Veteran’s forward flexion of the lumbar spine was to 30 degrees or less, that he had at least 4 weeks of incapacitating episodes or physician-prescribed bedrest, or ankylosis of the thoracolumbar spine. Likewise, to assign a higher evaluation for the period beginning November 27, 2017, the evidence has to demonstrate either ankylosis of the thoracolumbar spine or at least 6 weeks of incapacitating episodes or physician-prescribed bedrest. Based on the foregoing evidence, during the appeal period prior to November 27, 2017, the evidence does not demonstrate that the Veteran’s forward flexion was limited to at least 30 degrees; such limitation of motion is not shown in the record until the November 27, 2017 VA examination, at which time additional functional limitation with due to pain and repeated use limited his range of motion in forward flexion to 30 degrees. Additionally, throughout the appeal period, the Veteran’s thoracolumbar spine is not shown to be ankylosed. Finally, the evidence does not demonstrate that the Veteran had any physician-prescribed bedrest at any time during the appeal period. Consequently, for the period prior to November 27, 2017, the Board finds that the evidence does not demonstrate limitation of forward flexion to 30 degrees or less. Likewise, the Board finds that throughout the appeal period, the Veteran’s thoracolumbar spine is not shown to be ankylosed, nor is he shown to have any incapacitating episodes or physician-prescribed bedrest. Accordingly, evaluations in excess of 20 percent for the period prior to November 27, 2017, and in excess of 40 percent thereafter, for the Veteran’s lumbar spine disability must be denied at this time based on the evidence of record in this case. See 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5237, 5243. Finally, with regard to the Veteran’s noted bilateral radiculopathy in this case, the Veteran was awarded service connection for those disabilities in a July 2015 rating decision; as of this decision, the Veteran has not otherwise indicated that he disagrees with any of the assigned evaluations for those disabilities at any time during the appeal period. Accordingly, the Board will not address those assigned evaluations for the Veteran’s bilateral lower extremity radiculopathy in this case further. Entitlement to TDIU VA will grant TDIU when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. There are two regulatory subsections that allow for a TDIU. The first, called a “schedular TDIU,” is found at 38 C.F.R. § 4.16(a) and requires that certain disability rating percentages be in place. Either the Board or the AOJ can grant a schedular TDIU in the first instance. The second, called an “extraschedular TDIU,” is found at 38 C.F.R. § 4.16(b). It does not have the percentage requirement but cannot be granted by the Board or the AOJ in the first instance, it must be submitted to VA’s Director, Compensation Service in the first instance. 38 C.F.R. § 4.16(b). The schedular TDIU subsection provides that a total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment for purposes of entitlement to TDIU. Id. Marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be established, on a facts-found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. As an initial matter, service connection has already been established for a posttraumatic stress disorder, rated as 50 percent disabling from August 18, 2010 through January 3, 2016, and as 70 percent disabling beginning January 4, 2016; low back strain, rated as discussed above, as 20 percent disabling from August 13, 2010 through November 26, 2017, and as 40 percent disabling beginning November 27, 2017; headaches, rated as 30 percent disabling since August 13, 2010; left sciatica, rated as 10 percent disabling from February 20, 2015 through November 26, 2017, and as 20 percent disabling beginning November 27, 2017; right sciatica, rated as 10 percent disabling since February 20, 2015; bilateral foot disability, rated as 10 percent disabling since August 13, 2010; tinnitus, rated as 10 percent disabling since August 18, 2010; and, residuals of a left wrist fracture, rated as noncompensable throughout the appeal period. The Veteran’s combined evaluation for the 5-day period of August 13, 2010 through August 17, 2010, is 50 percent disabling, and since August 18, 2010, is at least 80 percent disabling. Accordingly, the Board reflects that the Veteran meets the schedular criteria for TDIU beginning August 18, 2010, in this case. See 38 C.F.R. § 4.16(a). Nevertheless, the Board has considered whether to refer this case to the Director of Compensation for an appropriate opinion, as required under 38 C.F.R. § 4.16(b), for the 5-day period not covered by 38 C.F.R. § 4.16(a) in this case. The Board, however, finds that such is not necessary, as the Veteran’s service-connected disabilities do not preclude him from obtaining and maintaining substantially gainful employment at any time during the appeal period. Turning to the evidence of record, in August 2010, the Veteran stated that he can “hardly keep a job due to the fact of having to stand for long periods of time and heavy lifting.” In September 2010, the Veteran reported that he was employed full time doing warehouse work, and also attending school full-time studying business. In January 2011, the Veteran reported that he was still working at the warehouse nearly full-time, between 35 to 40 hours a week. The VA psychiatrist opined that the Veteran’s reliability and productivity was reduced due to PTSD symptoms. In the July 2011 VA examination for headaches, the Veteran stated that he was attending school full time and that he was employed part time at a warehouse. He reported that he had headaches once or twice a week that caused nausea and vomiting, and that he had to go home to bed if the headache occurs during work or school. In a July 2011 VA feet examination, the Veteran stated that he had foot pain but did not lose any time from work or school. In September 2012, the Veteran was unemployed and stated that he could not “really keep a job because of always having back and foot pains.” He stated that he had three jobs in the past year but was unable to maintain employment. In May 2013, the Veteran reported that he was unemployed but was still enrolled in the university studying business with a 3.3 GPA. He stated that his last work was in June 2012 and that he lost the job when his contract ended. He has been unable to get jobs since losing this job. He also said that he struggles with warehouse jobs because of pain and boredom. In the February 2015 VA examination, the Veteran reported that he was working as a forklift operator at a lumber yard. He “went through multiple jobs” due to back pain, required frequent breaks due to physical limitations and irritability, and stated that he had difficulty keeping a job. He also stated that he recently earned a bachelor’s degree in business administration. In April 2016, the Veteran stated that he was currently unemployed but had 8 different jobs in 2015. His last job was as a forklift operator. He reported having difficulty getting along with management, co-workers, and that he would come in late, leave early, or call in sick due to anxiety, depression, anger and irritability. The VA psychologist who saw the Veteran opined that the Veteran was still competent to manage his funds. In the February 2017 hearing, the Veteran testified that he is “currently working” but that he has “had at least 30 jobs” since his discharge in May 2005. He did not state for how long he has had his current job. He testified that “having to go to VA appointments . . . end[ed] up affecting” his employment and that he was “let go” or was not able to go to work. The November 2017 examiner did not opine whether the Veteran’s service-connected disabilities impacted occupational and employment activities. Instead, the examiner repeated the Veteran’s statements that “[p]ain on the job resulted in reduced effectiveness resulting in poor evaluations/dismissal.” Another November 2017 VA examiner, who examined the Veteran’s tinnitus, indicated that the Veteran’s tinnitus impacted his ability to work, noting that he reported it felt like something was in his ear; the examiner, however, opined that his “tinnitus should not have any significant affects.” Based upon a review of the evidence, the Board finds that the Veteran’s service-connected disabilities do not preclude him from obtaining and maintaining substantially gainful employment. In addition to being able to obtain employment in various capacities, such as working at warehouses or at lumbermills operating a forklift, the Veteran was able to complete a bachelor’s degree in business. Moreover, the Veteran obtained his degree while either working or looking for employment. The ability to complete a bachelor level educational program as a full-time student is comparable to the ability to keep full-time employment. As the Veteran could manage both full-time roles simultaneously, the Board finds that the preponderance of the evidence demonstrates that the Veteran was capable of performing the physical and mental acts required by employment with a combined disability rating of 80 percent. Additionally, although the Veteran reported having several different jobs which weighs in favor of finding entitlement to TDIU, the Veteran reported in his November 2017 hearing that he was “currently working.” Although the Veteran did state that he had trouble keeping jobs, he is not incapable of performing the physical and mental acts required by employment. His high rating is a recognition of the fact that service-connected disabilities make it difficult to obtain and keep employment. Although the Veteran is shown to have some problems with maintaining a job due to absenteeism due to his service-connected disabilities, based on the evidence of record at this time, the Board cannot find that the evidence of record demonstrates that the Veteran is precluded from employment as a result of his service-connected disabilities, as demonstrated by his ability to handle employment and school requirement concurrently and to be able to obtain employment throughout the appeal period. Accordingly, entitlement to TDIU throughout the appeal period must be denied based on the evidence of record at this time. See 38 C.F.R. §§ 3.102, 4.16. In reaching the above conclusions, 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 claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Yun, Associate Counsel