Citation Nr: 21009811 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-46 183 DATE: February 23, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for bilateral tinnitus is denied. FINDINGS OF FACT 1. The weight of the evidence of record is against a finding that the Veteran’s bilateral hearing loss had onset during active service or is otherwise causally connected to his active service. 2. The weight of the evidence of record is against a finding that the Veteran’s bilateral hearing loss had onset during a period of active duty for training (ACDUTRA) or inactive duty training (IDT) or is otherwise related to acoustic trauma during a period of ACDUTRA or IDT. 3. The weight of the evidence of record is against a finding that the Veteran’s bilateral tinnitus had onset during active service or is otherwise related to his active service. 4. The weight of the evidence of record is against a finding that the Veteran’s bilateral tinnitus had onset during a period of ACDUTRA or IDT or is otherwise related to acoustic trauma during a period of ACDUTRA or IDT. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not not met. 38 U.S.C. §§ 101(21), (22), (24), 1110, 1131, 1154, 5107(b); 38 C.F.R. §§ 3.1(k), 3.6(a), (c)(3), 3.303. 2. The criteria for Entitlement to service connection for bilateral tinnitus have not been met. 38 U.S.C. §§ 101(21), (22), (24), 1110, 1131, 1154, 5107(b); 38 C.F.R. §§ 3.1(k), 3.6(a), (c)(3), 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1956 to December 1958. Afterwards, he was a member of the Army National Guard (ARNG) during which he performed periods of ACDUTRA and IDT between 1967 and 1991. The Board has twice remanded this case to the Agency of Original Jurisdiction (AOJ) for additional development. See 05/28/2019 Remand BVA; 06/02/2020 BVA Decision. The Board notes that on July 12, 1973, a fire at the National Personnel Records Center (NPRC) in St. Louis, MO destroyed approximately 80 percent of the records NPRC held for veterans who were discharged from the Army between November 1, 1912, and January 1, 1960. As noted in the 2020 remand, the Veteran’s medical and personnel records are fire related, see 5/03/2017 Military Personnel Record (MPR), which means that if any records associated with him were ever on file at the NPRC, they in all probability were destroyed in the 1973 fire. The Veteran’s representative has acknowledged all available service records have been obtained and associated with the record. See 5/01/2020 Appellate Brief, pg. 2. Hence, as discussed in further detail below, the Board finds substantial compliance with the prior remand directives, see Stegall v. West, 11 Vet. App. 268, 271 (1998), as well with the duty to assist the Veteran. See 38 C.F.R. § 3.159(c). Service Connection General Legal Requirements Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The term “veteran” is defined in 38 U.S.C. § 101(2) as “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” The term “active military, naval, or air service” includes (1) active duty, (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and (3) any period of IDT during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a); see Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). ACDUTRA is defined, in part, as “full-time duty in the Armed Forces performed by reserves for training purposes.” 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). The term IDT is defined, in part, as duty, other than full-time duty, under sections 316, 502, 503, 504, or 505 of Title 32 [U. S. Code] or the prior corresponding provisions of law. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); see also 38 C.F.R. § 3.102. 1. Entitlement to service connection for bilateral hearing loss is denied. Legal Requirements for Hearing Loss For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (db) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 db or greater; or, when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. VA regulations do not preclude service connection for a hearing loss that first met VA’s definition of disability after service, provided the evidence of record shows the required nexus with active service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993); see also 38 C.F.R. § 3.303(d). Veteran’s Contention The Veteran does not assert that his hearing loss had onset during his tour of active service. Instead, he asserts that he sustained his hearing loss as a result of his noise exposure to heavy artillery fire and demolition training as a combat engineer during his tours of ACDUTRA and IDT. See 05/20/2014 NOD; 01/04/2019 Hearing Transcript, P. 3. In his Substantive Appeal, the Veteran asserted that a 1969 Report of Medical Examination was forged, and that the audiometry of his hearing tests in 1982 and 1986 show a huge threshold shift. See 08/31/2017 VA Form 9. ACDUTRA/IDT Legal Requirements As a rule, a chronic disease of the central nervous system, such as hearing loss, is presumed to have been incurred in service if it manifested at least to a compensable degree within one year of active service. 38 U.S.C. § 1101; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Generally, however, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) attach to periods of ACDUTRA and IDT unless “veteran” status is attained during those periods. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). While service on active duty alone is sufficient to meet the statutory definition of veteran, service on ACDUTRA or IDT, without more, will not suffice. Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). Before veteran status can be established for a such a period, it must first be established that a claimant was disabled from a disease or injury incurred or aggravated in line of duty during ACDUTRA, or that he or she was disabled from an injury incurred or aggravated in line of duty during IDT. The presumption of soundness does not apply to a claimant who had only ACDUTRA service and who is not otherwise a veteran. Paulson, 7 Vet. App. at 471. Even for veterans who have achieved “veteran” status through a prior period of active service and now claim a disability incurred only during a later period of ACDUTRA, the presumption of soundness applies only when the veteran has been “examined, accepted, and enrolled for service” and where that examination revealed no “defects, infirmities, or disorders.” Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010). In other words, there must be an entrance examination prior to the period of ACDUTRA (or IDT) in which the veteran claims the disease or injury occurred; otherwise, the presumption of soundness does not attach. Id. Moreover, if the claimant has not achieved “veteran” status through a prior period of service, then the presumption of soundness does not attach to a period of ACDUTRA (or IDT), no matter if an examination occurred prior to the period of ACDUTRA (or IDT). Id. In order for a claimant to establish veteran status under 38 U.S.C. § 101(24)(B) based on aggravation in the line of duty, a claimant must show that he or she experienced a permanent increase in disability beyond the natural progress of that disease or injury during a period of ACDUTRA. Donnellan v. Shinseki, 24 Vet. App. 167, 172-74 (2010) (“‘aggravated’ in section § 101(24)(B) carries the same definition as ‘aggravated’ in [38 U.S.C. § 1153] and, therefore, should include both elements of aggravation discussed in section 1153”). Just establishing that a disability worsened during service is not enough, since the presumption of aggravation does not apply where a claim is based on a period of ACDUTRA or IDT. See Smith, 24 Vet. App. at 48 n.7. Furthermore, temporary or intermittent flare-ups of a pre-existing condition during service are not sufficient to be considered aggravation of the condition, unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Discussion Initially, the Board acknowledges that the Veteran is fully competent to testify to his in-service experiences, including any injury he may have sustained or any visits to sick call. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Likewise, his wife, soldiers with whom he served, and others who had an opportunity to observe him, are fully competent to testify or provide written statements that describe any symptoms that they observed the Veteran to have manifested. See 38 C.F.R. § 3.159(a)(2). While competent, such evidence still must be assessed for veracity, accuracy, and reliability. Second, there is evidence of a currently diagnosed sensorineural hearing loss in each ear, so the first requirement for service connection is met. 38 C.F.R. § 3.303. As noted earlier, the Veteran’s service treatment (STRs) and MPRs associated with his ARNG service are not available. However, a number of reports of medical examination conducted during the years that he belonged to the ARNG are available. The Board acknowledges that prior to 1969 the Veteran’s hearing was tested by means of the Whispered Voice (WV) and Spoken Voice (SV), which do not provide a valid assessment of high frequency hearing. See 08/01/2013 VA Examination, P. 4. Concerning the August 2013 VA examination, the Board notes that the examiner’s nexus opinion was confined to whether the Veteran’s currently diagnosed hearing loss is causally related to his tour of active service. The examiner did not address the Veteran’s tours while he was in the ARNG. After review of the Veteran’s hearing testimony where he asserted that his hearing loss had onset during ARNG ACDUTRA and IDT tours, the Board remanded the case with instruction that an audiologist assess the likelihood of whether a hearing loss that had onset between ACDUTRA or IDT tours was aggravated during such tours. The examiner opined that it was not at least as likely as not that in 1973 there was an existing hearing loss to be aggravated. See 03/03/2020 C&P Exam, 1st and 2nd Entries. The examiner did not address the status of the Veteran’s hearing from 1973 forward. The Board then remanded the case again with a request that the audiologist clarify whether her assessment of the Veteran’s 1969 hearing tests of record accounted for the changeover from the standards set forth by the American Standards Association (ASA) or International Standards Organization-American National Standards Institute (ISO-ANSI) (ANSI). The current definition for a hearing loss disability found at 38 C.F.R. § 3.385 is based on ANSI units. Where it is necessary to facilitate data comparison for VA purposes, audiometric data originally recorded using ASA standards will be converted to ANSI standard by adding between 5 and 15 dB to the recorded data as follows: HERTZ 500 1000 2000 3000 4000 6000 ADD 15 10 10 10 5 10 The Veteran’s October 1969 Report of Medical Examination ANG Periodic reflects that his audiometer showed as follows (ANSI units are in ()): HERTZ 500 1000 2000 3000 4000 RIGHT 12 (27) 4 (14) 6 (16) 7 (17) 10 (15) LEFT 9 (24) 0 (10) 7 (17) 9 (19) 0 (5) See 07/14/2014 STR-MED, P. 44. When considered under ANSI, an elevated threshold is noted, bilaterally, at 500 Hz, since the Court of Appeals for Veterans Claims (Court) has indicated that the threshold for normal hearing is between 0 and 20 dB, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Hence, the Board remanded again to obtain medical clarification. See 06/02/2020 BVA Decision. In the examination report (09/25/2020 C&P Exam) the audiologist noted that the 1969 audiometric data did not document when the equipment was calibrated or what standard was used. Nonetheless, the audiologist opined that most likely the ASA standard was used, since ANSI thresholds are shown in 5-db increments. Id. P. 1. The table set forth above shows that the Veteran’s threshold results were not reflected in 5-db increments. Based on a review of the claims file, to include the lay evidence of record, the audiologist opined that it was not at least as likely as not that the Veteran’s currently diagnosed bilateral hearing loss is causally connected to any of his ACDUTRA or IDTs. As concerned the 1969 audiometric results, the audiologist opined that they did not show a significant threshold shift with or without a conversion from ASA to ANSI standards. The audiologist’s rationale was that the Veteran’s 1973 thresholds were 5 db across the board [see 07/14/2014 STR-MED, P. 49]. Further, since hearing loss is not reversible, he could not have had a significantly better (within test retest reliability) hearing in 1973 had there been hearing loss in 1969. 09/25/2020 C&P Exam, P. 5. The audiologist’s opinion regarding the 1969 audiometric results essentially moots the Veteran’s assertion on his VA Form 9 that the 1969 examination was forged. Nonetheless, the Board finds no evidence whatsoever that an official report of examination is other than what it purports to be, and-other than his unsupported personal opinion, the Veteran has not submitted or cited the Board to any evidence to support his assertion. Hence, his assertion is not afforded any substantive weight. The Board remand also asked for medical assessment of the July 1982 and July 1986 audiometric results. HERTZ 1978 500 1000 2000 3000 4000 6000 RIGHT 5 5 5 NR 10 NR LEFT 5 5 5 NR 5 NR HERTZ 1982 500 1000 2000 3000 4000 6000 RIGHT 20 20 15 20 20 20 LEFT 20 20 20 20 20 20 HERTZ 1986 500 1000 2000 3000 4000 6000 RIGHT 15 25 15 15 15 15 LEFT 15 25 15 15 15 15 See 07/14/2014 STR-MED, P. 56, 58, 62. Applying the concept that hearing loss is not reversible, the audiologist opined that the 1986 audiogram of thresholds of one 25 db and the rest, 15dB, still would not show a significant threshold shift. The audiologist noted further that it was a given that all, including the Veteran, who served during the Vietnam War era had noise exposure. Further, however, not all who have had such noise exposure will objectively be shown to have developed hearing loss. Noise exposure per OSHA Standards is accumulative and does not affect every person exactly the same. The average person can have hearing loss at 90 dB over a repeated 8-hour time frame, or 125 dB for 7 minutes. Noise exposure is not a guarantee of damage, just of an increased risk for it. Up into the mid-70 dbs there still was no significant threshold shift, which is far outside of what the effects of wartime noise exposure would have caused. 09/25/2020 C&P Exam, P. 5, 7. Upon receipt of the examination report the AOJ noted that the audiologist had not mentioned the Veteran’s Buddy Statement to the effect that a decrease in the Veteran’s hearing was observed in the 1980s, and the person had to raise his voice when speaking to the Veteran. See 10/29/2014 BUDDY/LAY. Hence, an addendum was requested. In the addendum (10/27/2020 C&P Exam), the audiologist noted that noise exposure can cause a hearing loss with a one-time exposure with an intense impulse sound (explosion) or continuous exposure to louder sounds over time. NIOSH and OSHA have set standards for the “average” person. The amount of time spent in a noisy environment is determined by how loud. For example, a leaf blower is 80 to 85 db, and the average person would have to be exposed for more than 2 hours without breaks to be at risk. If the noise reaches 140 db, then damage would be instantaneous. Due to the nature of damage to the hearing system, and the evidence of record that the Veteran’s hearing did not change, any buddy statement is moot, as the Veteran’s hearing did not change. Id. In addition to the fact that the in-service audiometric results showing that the Veteran’s hearing did not change, the audiologist also noted that there was no evidence of problems with his eardrums, ear drainage, tinnitus, acoustic trauma, or head injury. Citing Otolaryngology, Volume II, 3rd Edition, Paparella & Shumrick, W. B. Saunders Co. 1991, P. 1639, the audiologist noted that that hazardous noise exposure has an immediate effect on hearing, and it is usually temporary at first. It does not have a delayed onset nor is it progressive or cumulative. The audiologist opined that based on the medical literature on the subject, mere exposure to hazardous noise levels during military service, alone, is not sufficient to show a nexus between hearing loss and active service. The audiologist noted a number of research studies of hazardous noise exposure in the military that noted that 95 percent of veterans were exposed to hazardous levels of noise during military service, but less than 20 percent had complaints of hearing disturbances, and even fewer had identified hearing loss. further, according to the JOURNAL OF REHABILITATION RESEARCH & DEVELOPMENT, Volume 42 Number 4, July/August 2005, Supplement 2, page 45, the article “Hearing health and care: only 20 percent of the veteran’s returning from combat deployment in Iraq and Afghanistan had complaints of hearing disturbances. Only a percentage of those were found to have hearing loss. The audiologist opined further that the Veteran’s assertion of delayed onset of hearing loss is inconsistent with the findings of medical studies. The Veteran has submitted three opinions from non-VA audiologists. A September 2013 letter notes that the audiologist had treated the Veteran since 2011, and she opined that the Veteran’s hearing loss may have stemmed from the percussion of guns and artillery during the years the Veteran was in the ARNG. An October 2014 opinion notes that the Veteran’s post-service work as a teacher had very little noise exposure, so his hearing loss was likely secondary to military noise exposure during work in demolition, artillery, and tank training. See 10/29/2014 Non-Government Facility, P. 2, 6. In a June 2018 letter, another non-VA audiologist opined that given the Veteran’s extensive history of noise exposure during both active duty and NG service, it was at least as likely as not that the Veteran’s hearing loss was associated with that service. See 12/20/2019 Non-Government Facility, P. 1. The Board must assess the credibility and probative value of evidence and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Further, the Board is not required to accord more weight to the opinion of a treating physician or, in this case, audiologist, see White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001), as the Court has explicitly “rejected the broad application of the ‘treating physician rule’ that gives the opinions of treating physicians greater weight in evaluating veterans’ claims.” Van Slack v. Brown, 5 Vet. App. 499, 502 (1993) (citing Harder v. Brown, 5 Vet. App. 183, 188 (1993)); see Guerrier v. Brown, 7 Vet. App. 467 (1993). Hence, while the Board is not free to ignore the opinion of medically trained treating personnel, neither is it required to accord it substantial weight. See generally Guerrieri, 4 Vet. App. at 471-73; Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). Although the Veteran’s non-VA audiologists are competent to render their opinions, the Board finds that they are entitled to de minimus weight at best. The 2013 opinion offered no rationale whatsoever for the conclusion reached. Further, the audiologist opined that the Veteran’s NG service “may” have been the etiology for his hearing loss. Such opinions are tentative, as “may” also means “may not.” See Obert v. Brown, 5 Vet. App. 30 1993). While the 2014 opinion did compare the Veteran’s post-service work environment to his ARNG environment, the opinion is still heavily reliant on the Veteran’s history as he reported it. The 2019 opinion has similar deficiencies. The sole rationale the audiologist noted was the Veteran’s extensive history, which she likely received from the Veteran, since her opinion noted that she had no prior audiograms against which to compare the Veteran’s current hearing result. There was no impropriety in either audiologist relying on the history that the Veteran reported, but any resulting opinion is no better than the history on which it is based. See generally Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). The VA audiologist, by contrast, noted the results of her review of the medical literature on the subject. In addition, the VA audiologist reviewed the claims file. Hence, the VA audiologist provided a clear rationale for her opinion, which is fully supported by the evidence of record. Regarding the VA audiologist’s opinion, the Board notes that she cited the Institute of Medicine (IOM) study while addressing the prospect of delayed onset hearing loss by the Veteran. The IOM, which is the health branch of the National Academy of Sciences (NAS), has found that although there were no definitive studies, based on anatomical and physiological data it was unlikely that there would be a delayed onset of a chronic sensorineural hearing loss following acoustic trauma. In this regard, the 2005 IOM article entitled Noise and Military Service: Implications for Hearing Loss and Tinnitus was a mega-study of 15 months’ work evaluating many other peer-reviewed journals, books and reports. The committee members had expertise in audiology, bioacoustics, military preventive medicine, occupational medicine, industrial hygiene and hearing conservation programs, epidemiology and otology. In part, the committee was charged to determine whether or not hearing loss from acoustic trauma, hearing threshold shifts, or tinnitus, was immediate or delayed onset; cumulative, progressive; or any combination. A chapter of the 2005 IOM committee’s report was to determine the effects of noise on hearing thresholds as well as the time course for the development of hearing loss from noise exposure. The 2005 IOM report noted that the “hallmark of noise-induced hearing loss is a characteristic noise notch in the audiogram that typically occurs between 3000 and 6000 Hertz.” The 2005 IOM report used five standards of evidentiary proof as to evidence of a delayed onset of hearing loss following exposure to acoustic trauma, and these were whether there was (a) sufficient evidence of an association, or (b) not sufficient evidence of an association; or (c) limited or suggested evidence of an association; (d) sufficient evidence of an association; or (e) sufficient evidence of a causal relationship. The report concluded that there was sufficient evidence that the most pronounced effects of a given noise exposure were audiometrically measurable immediately following the exposure. There was sufficient evidence that the most recovery to stable thresholds occurred within 30 days of the noise exposure. There was not sufficient evidence that noise-induced hearing loss developed much later in one’s lifetime, long after the cessation of the noise exposure based on longitudinal studies. Further, based on data available on the recovery process following noise exposure it was unlikely that such a delayed effect would occur. In McCray v. Wilkie, 31 Vet. App. 243 (2019), the Court stated that “a non-exhaustive list of factors that, depending on the case, may be relevant considerations in determining the adequacy and probative value of a medical opinion [are]: whether there was personal examination of the patient; the expert’s knowledge and skill in analyzing the data; whether the opinion contains clear conclusions with supporting data and a reasoned medical explanation connecting the two; whether the opinion is clear and susceptible of only one meaning; the expert’s familiarity with pertinent medical history; whether there is any inconsistency in the expert’s statements; whether the expert has provided a thorough and detailed opinion about an area within his or her expertise; whether the expert has provided factually accurate, fully articulated, and sound reasoning for his or her conclusion; whether the expert relied on sufficient facts or data; whether the opinion is the product of reliable principles and methods; and whether the opinion is the result of principles and methods reliably applied to facts. Because of noted disputes over the medical article, the Court held that in addition to other factors, that there was for consideration “whether the medical text evidence that the medical opinion relies on contains qualifying or contradictory aspects.” If so, the Board had to “explain whether those aspects of the medical text diminish the probative value of the medical opinion evidence or render the opinion inadequate, and if not, why not.” McCray, 31 Vet. App. at 257, 258. The Board finds that although the VA audiologist cited the IOM study, there is no need to address the concerns noted in McCray because the IOM study was not the only one noted by the VA audiologist in what was a comprehensive rationale. Further, as discussed below the evidence of record compellingly supports the negative nexus opinions. Hence, the Board finds the VA Audiologist’s opinions highly probative and attaches significant weight to them. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). First, the Board notes that the Veteran’s numerous Reports of Medical History for periodic physicals during his ARNG years in which he consistently denied any history of hearing loss. See, e.g., 07/14/2014 STR-MED, 1st Entry, P. 49, 58, 59, 62. Additionally, there are the records of the Veteran’s primary care physician. At the hearing the Veteran’s wife testified that she mentioned the Veteran’s hearing loss during several doctor’s visits, and each time the doctor said it was likely due to the Veteran’s military service. See 01/04/2019 Hearing Transcript, P. 11. That may be what she sincerely remembers, but it is contrary to the documentation of record. A June 2007 entry of the physician’s records notes that the Veteran’s wife was concerned about his hearing. That is the earliest documented entry. Then in May 2008 the physician noted that the family was concerned that the Veteran’s hearing was worsening. There is no notation that the physician opined that it was connected to the Veteran’s military service. See 11/07/2011 Non-Government Facility, P. 8, 11. An August 2010 entry in the same physician’s records is noteworthy. There, the Veteran complained of immediate ringing and hearing loss, especially in his right ear, when he shot a rifle without hearing protection. The Veteran reported that the ringing had subsided, but not the muffled sound on his right side. Id. P. 15. The entry does not note a date on which the incident occurred, but there is no indication that the Veteran connected the event with his ARNG service. The Board also notes the statement of the Veteran’s friend of 40 years who stated that each summer after the Veteran returned from his annual tour of active duty, he and others would have to raise their voices in order for the Veteran to hear their words. He stated further that it was evident that the big guns under the Veteran’s command would take their toll on the Veteran’s ability to hear and communicate, and that his hearing would not improve but progressively worsen over the years. See 10/29/2014 Non-Government Facility, P. 7. The friend’s lay statement is competent to the extent it describes what he believes he remembers. See 38 C.F.R. § 3.159(a)(2). As discussed above, however, the Board finds that it simply is outweighed by the other evidence of record. Based on the discussion of all of the evidence set forth above, the Board finds that the preponderance of the evidence of record is against the Veteran’s claim for hearing loss. 38 C.F.R. §§ 3.1(k), 3.6(a), (c)(3), 3.303. Since the preponderance of the evidence of record is against the claim, there is no reasonable doubt to resolve. Gilbert, 1 Vet. App. 49, 57-58 (1990); see also 38 C.F.R. § 3.102. As the Board set forth earlier, the Veteran bases his claim on his performance of tours of ACDUTRA and IDT. Hence, service connection on a presumptive basis is not for consideration. 2. Entitlement to service connection for bilateral tinnitus is denied. At the August 2013 VA examination the Veteran reported that he could not recall when his tinnitus started. He complained of an intermittent bilateral ringing/buzzing which occurred primarily when he was wet, and it lasted from minutes to hours. The examiner opined that since it was not at least as likely as not that the Veteran’s hearing loss was causally connected to active service, the same applied to his tinnitus. Id. P. 5. At the September 2020 examination the Veteran reported that he had experienced tinnitus intermittently for a long time in both ears, and that he was not sure how often. See 09/25/2020 C&P Exam, P. 7. The examiner opined that it was at least as likely as not that the Veteran’s tinnitus was associated with his currently diagnosed hearing loss, as it is known that tinnitus is associated with hearing loss. The examiner explained that tinnitus is defined as any sound that the individual can hear that does not come from an outside source. Transient ear noise is defined as having a short-term ringing in the ears no more than twice a week. Tinnitus can contribute to noise exposure which is more consistent with being “constant,” not “intermittent.” The examiner opined that since she saw no significant proof that the Veteran had significant noise damage during service, she could not conclude that the Veteran’s tinnitus was causally connected with his service. Id. P. 9. The Veteran’s non-VA records dated in 2011 note that when he was fitted for hearing aids that he denied having tinnitus or vertigo. See 11/07/2011 Non-Government Facility, P. 8. The June 2018 opinion of the non-VA audiologist notes that the Veteran denied tinnitus, dizziness, or imbalance. See 07/23/2018 Non-Government Facility, P. 1. A VA examiner opined that tinnitus associated with noise exposure or hearing loss due to noise exposure is not intermittent but constant. Further, as set forth above, the Veteran has consistently denied tinnitus. Hence, the Board is constrained to find that the preponderance of the evidence of record is against the claim. 38 C.F.R. §§ 3.1(k), 3.6(a), (c)(3), 3.303. Since the preponderance of the evidence of record is against the claim, there is no reasonable doubt to resolve. Gilbert, 1 Vet. App. 49, 57-58 (1990); see also 38 C.F.R. § 3.102. As the Board set forth earlier, the Veteran bases his claim on his performance of tours of ACDUTRA and IDT. Hence, service connection on a presumptive basis is not for consideration on the facts of this case. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.