Citation Nr: 0523344 Decision Date: 08/25/05 Archive Date: 09/09/05 DOCKET NO. 03-23 955 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Whether a May 1993 rating decision was clearly and unmistakably erroneous in denying service connection for hypertension. 2. Whether a May 1993 rating decision was clearly and unmistakably erroneous in denying service connection for arteriosclerotic heart disease. 3. Whether new and material evidence has been presented to reopen a claim for service connection for displacement of a right lower incisor and bicuspid teeth. 4. Entitlement to service connection for hypertrophic left knee strain. 5. Entitlement to service connection for residuals of a left knee soft tissue injury. 6. Entitlement to service connection for a tear of the posterior horn of the left knee. 7. Entitlement to service connection for bilateral hearing loss with tinnitus. 8. Entitlement to service connection for rheumatoid arthritis of the hands and shoulders. 9. Entitlement to service connection for sickle cell anemia. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD William Harryman, Counsel INTRODUCTION The veteran had active duty from November 1962 to September 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2001 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The issues relating to service connection for hypertension and arteriosclerotic heart disease were the subject of a rating decision in May 1993 that denied the claimed benefits. However, the Board, on its own motion, will consider the issue of whether that rating decision was clearly and unmistakably erroneous as to that denial. In addition, although the issues relating to service connection for left knee disabilities was considered and certified by the RO as whether new and material evidence has been presented to reopen those claims, the Board will consider the larger issue of entitlement to service connection for those disabilities. In light of action taken herein, the Board finds that the veteran is not prejudiced by the Board's action as to those issues. Bernard v. Brown, 4 Vet. App. 384, 394 (1993) FINDINGS OF FACT 1. A May 1993 rating decision denied service connection for hypertension. The veteran was notified of that decision and did not file a notice of disagreement within one year of that notice. 2. The May 1993 rating decision that denied service connection for hypertension involved undebatable error which, had it not been made, would have manifestly changed the outcome of the decision. 3. A May 1993 rating decision denied service connection for arteriosclerotic heart disease. The veteran was notified of that decision and did not file a notice of disagreement within one year of that notice. 4. The May 1993 rating decision that denied service connection for arteriosclerotic heart disease involved undebatable error which, had it not been made, would have manifestly changed the outcome of the decision. 5. A May 1993 rating decision denied service connection for displacement of a right lower incisor and bicuspid teeth. The veteran was notified of that decision and did not file a notice of disagreement within one year of that notice. 6. Evidence added to the record since May 1993 concerning displacement of a right lower incisor and bicuspid teeth is merely cumulative of evidence that was previously of record and considered or does not support the veteran's claim. 7. A May 1993 rating decision denied service connection for hypertrophic left knee strain. The veteran was notified of that decision and did not file a notice of disagreement within one year of that notice. 8. Evidence added to the record since May 1993 concerning hypertrophic left knee strain was not previously of record and raises a reasonable possibility of substantiating the claim. 9. The medical evidence shows that the veteran's current left knee disorder is related to his in-service hypertrophic left knee strain. 10. A May 1993 rating decision denied service connection for residuals of a left knee soft tissue injury. The veteran was notified of that decision and did not file a notice of disagreement within one year of that notice. 11. Evidence added to the record since May 1993 concerning residuals of a left knee soft tissue injury was not previously of record and raises a reasonable possibility of substantiating the claim. 12. The medical evidence shows that the veteran's current left knee disorder is a residual of an in-service left knee soft tissue injury. 13. A May 1993 rating decision denied service connection for residuals of a tear of the posterior horn of the left knee. The veteran was notified of that decision and did not file a notice of disagreement within one year of that notice. 14. Evidence added to the record since May 1993 concerning residuals of a tear of the posterior horn of the left knee was not previously of record and raises a reasonable possibility of substantiating the claim. 15. The medical evidence shows that the veteran's current left knee disorder is a residual of an in-service tear of the posterior horn of the left knee. 16. Although the evidence indicates that the veteran may currently have hearing loss meeting the criteria set forth at 38 C.F.R. § 3.385 for hearing loss disability, the medical evidence does not show that any current hearing loss is due to a disease or injury in service or was manifest to a compensable degree within one year after the veteran's separation from service. 17. The medical evidence does not show that the veteran currently has tinnitus or that any current tinnitus is due to a disease or injury in service or was manifest to a compensable degree within one year after the veteran's separation from service. 18. The medical evidence does not show that any current rheumatoid arthritis of the hands and shoulders is due to a disease or injury in service or was manifest to a compensable degree within one year after the veteran's separation from service. 19. The medical evidence does not show that the veteran has sickle cell anemia. CONCLUSIONS OF LAW 1. The May 1993 rating decision was clearly and unmistakably erroneous in denying the veteran's claim for service connection for hypertension. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.105(a) (2004). 2. The May 1993 rating decision was clearly and unmistakably erroneous in denying the veteran's claim for service connection for arteriosclerotic heart disease. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.105(a), 3.310 (2004). 3. Evidence received since the May 1993 rating decision, which denied the veteran's claim for service connection for displacement of a right lower incisor and bicuspid teeth, is not new and material and the claim is not reopened; the May 1993 rating action is final. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156(a) (2001, 2004), 20.302, 20.1103 (2004). 4. Evidence received since the May 1993 rating decision, which denied the veteran's claim for service connection for hypertrophic left knee strain, is new and material and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156(a) (2001, 2004), 20.302, 20.1103 (2004). 5. Hypertrophic left knee strain was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2004). 6. Evidence received since the May 1993 rating decision, which denied the veteran's claim for service connection for residuals of a left knee soft tissue injury, is new and material and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156(a) (2001, 2004), 20.302, 20.1103 (2004). 7. Residuals of a left knee soft tissue injury were incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2004). 8. Evidence received since the May 1993 rating decision, which denied the veteran's claim for service connection for residuals of a tear of the posterior horn of the left knee, is new and material and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156(a) (2001, 2004), 20.302, 20.1103 (2004). 9. Residuals of a tear of the posterior horn of the left knee were incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2004). 10. Bilateral hearing loss with tinnitus was not incurred in or aggravated by service, nor may they be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2004). 11. Rheumatoid arthritis of the hands and shoulders was not incurred in or aggravated by service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2004). 12. Sickle cell anemia was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)), imposes obligations on VA in terms of its duty to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete 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) (West 2002); 38 C.F.R. § 3.159(b) (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. In this case, the RO has had an opportunity to consider the claims on appeal in light of the above-noted change in the law, and the requirements of the new law and regulations have been satisfied. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159). By virtue of the June 2003 statement of the case, the various supplemental statements of the case, and the May 2001, March 2003, and November 2003 RO letters to the veteran notifying him of the VCAA, he has been advised of the laws and regulations governing the claims on appeal and the evidence that he must supply and the evidence that VA would attempt to obtain. Thus, he may be considered to have been advised to submit any pertinent evidence in his possession. Finally, the Board notes that records of VA and private treatment through June 2004 have been obtained, and that the veteran has been afforded several VA compensation examinations. The veteran has not identified any additional evidence not already associated with the claims folder that is obtainable. Therefore, the Board finds that the duty to assist has also been met. Also, the Board has considered the Court's holding in Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), in which the Court held that 38 U.S.C.A. § 5103(a) requires VA to provide notice to the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim before any initial unfavorable agency of original jurisdiction decision. In the present case, the RO initially provided the veteran with notice as to the VCAA prior to the October 2001 rating decision on appeal, and subsequently provided him with additional notice as to evidence and information that was necessary to establish his claims. Finally, the veteran's claim was reconsidered on several occasions, most recently in March 2005, in light of the additional development performed subsequent to October 2001. Therefore, the Board finds no evidence of prejudicial error in proceeding to a decision on the merits in the present case. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Analysis Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and sensorineural hearing loss, tinnitus, or arthritis becomes manifest to a degree of 10 percent within 1 year from the date of termination of such service, such disease shall be presumed to have been incurred 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, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Clear and unmistakable error As noted above, the Board will consider, on its own motion, the issue of whether a May 1993 rating decision was clearly and unmistakably erroneous in denying service connection for hypertension and arteriosclerotic heart disease. Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a). There is a presumption of validity to otherwise final decisions, and, in the face of a claim of error, the presumption is even stronger. Martin v. Gray, 142 U.S. 236 (1891); Sullivan v. Blackburn, 804 F.2d 885 (5th Cir. 1986). "Clear and unmistakable error" (CUE) is a very specific and rare kind of error, of fact or law, that is undebatable, and when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different, but for the error. Fugo v. Derwinski, 6 Vet. App. 40, 43 (1993). In order to find CUE it must be determined (1) that either the facts known at the time were not before the adjudicator or the law then in effect was incorrectly applied, (2) that an error occurred based on the record and the law that existed at the time the decision was made, and (3) that, had the error not been made, the outcome would have been manifestly different. Grover v. West, 12 Vet. App. 109, 112 (1999) (citing Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). In a CUE claim, "[t]he claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated." Crippen v. Brown, 9 Vet. App. 412, 418 (1996). Also, for a claim of CUE to be reasonably raised, the claimant must provide some degree of specificity as to what the error is, and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why the error would have manifestly changed the outcome at the time it was made. Bustos v. West, 179 F.3d 1378, 1380 (1999) (citing Russell, 3 Vet. App. at 313 (1992)); see also Fugo, 6 Vet. App. at 44 (1993). Additionally, "even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable." Fugo, 6 Vet. App. at 43-44. Moreover, VA's breach of a duty to assist cannot form the basis for a claim of CUE. Baldwin v. West, 13 Vet. App. 1, 5 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994). Hypertension A rating decision in May 1993 denied service connection for hypertension; the veteran was notified of that determination and did not file an appeal. The Board concludes, however, that that decision was clearly and unmistakably erroneous and should be reversed. The evidence of record at the time of the 1993 rating decision included the service medical records which contain numerous recordings of elevated blood pressure readings, particularly in the latter years of service, although not all readings were elevated. One examiner specifically diagnosed probable labile high blood pressure. In addition, the veteran's daily headaches were attributed to his high blood pressure. Moreover, the veteran was hospitalized at a VA facility in May 1992, approximately a year and a half after his separation from service, for evaluation and treatment of his hypertension that had been found on a routine outpatient visit. He was started on antihypertensive medication during that hospitalization. On VA compensation examination in January 1993, it was noted that the veteran claimed to have been diagnosed as having hypertensive cardiovascular disease in 1976. The veteran reportedly had not been taking his medication for hypertension regularly, but only as needed. The veteran's blood pressure during that examination was recorded as 130/80 and the examiner stated that there was "no evidence of hypertension." The Board finds that the numerous elevated blood pressure readings and notations of high blood pressure during service, coupled with the treatment for hypertension during the May 1992 hospitalization wherein he was noted to have a history of hypertension provide ample evidence that the veteran had hypertension during service and after service. Therefore, the RO's denial of service connection in May 1993 constituted an erroneous application of the available facts to the law. Clearly, had the error not been made, the outcome would have been manifestly different. Accordingly, the Board concludes that the May 1993 rating decision was clearly and unmistakably erroneous in denying service connection for hypertension and should be reversed. Although not central to the instant decision, the Board notes that treatment records dated since 1996 contain numerous diagnoses of hypertension and reflect ongoing prescription of antihypertensive medication. Therefore, service connection for hypertension is granted on the basis of direct service incurrence. Arteriosclerotic heart disease A rating decision in May 1993 denied service connection for arteriosclerotic heart disease; the veteran was notified of that determination and did not file an appeal. The Board concludes, however, that that decision was clearly and unmistakably erroneous and should be reversed. The evidence that was of record at the time of the May 1993 rating decision included the service medical records, which contain no reference to complaints, clinical findings, or diagnoses of heart disease; the summary of a May 1992 VA hospitalization; and the report of a VA compensation examination in January 1993. The May 1992 hospitalization summary specifically lists a diagnosis of "ASHD, NIF, CFC II-B" (arteriosclerotic heart disease, functional class II-B). The report discussed that diagnosis in conjunction with the diagnosis of hypertension. It is a well established fact that hypertension is a precursor of arteriosclerotic heart disease. In light of the Board's reversal of the May 1993 rating decision relating to service connection for hypertension, and the consequent grant of service connection for hypertension, the Board finds that the RO's denial of service connection for arteriosclerotic heart disease due to hypertension in that same decision was also error, which, had it not been made, would have manifestly changed the outcome. Accordingly, the Board concludes that the May 1993 rating decision was clearly and unmistakably erroneous in denying service connection for arteriosclerotic heart disease and should be reversed. Although not central to the instant decision, the Board notes that treatment records dated since 1996 contain numerous diagnoses of coronary artery disease and reflect ongoing treatment for that disorder. Therefore, service connection for arteriosclerotic heart disease is granted. New and material evidence Absent the filing of a notice of disagreement within one year of the date of mailing of the notification of the denial of an appellant's claim and absent the filing of a substantive appeal within the remainder of that year or within 60 days of the mailing of the statement of the case, whichever is later, a rating determination is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. In order to reopen a previously and finally disallowed claim, the United States Court of Appeals for Veterans Claims (Court) has indicated that a two-step analysis is required. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156; Manio v. Derwinski, 1 Vet. App. 140 (1991); see also Elkins v. West, 12 Vet. App. 209 (1999); Winters v. West, 12 Vet. App. 203 (1999). The first step is to determine whether new and material evidence has been presented or secured since the time that the claim was previously and finally disallowed on any basis. It should be pointed out that, in determining whether evidence is material, "credibility of the evidence must be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Further, evidentiary assertions by the appellant must be accepted as true for these purposes, except where the evidentiary assertion is inherently incredible. King v. Brown, 5 Vet. App. 19 (1993). Lay assertions of medical causation or diagnosis do not constitute credible evidence, as lay persons are not competent to offer medical opinions. Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (1992); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). If new and material evidence has been received, then the Secretary must immediately proceed to the second step, i.e., evaluating the merits of the claim, but only after ensuring that the duty to assist the claimant under 38 U.S.C.A. § 5107(a) has been fulfilled. For applications to reopen a claim received prior to August 29, 2001, as is the case here, new and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001); see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). For applications to reopen a claim received beginning August 29, 2001, new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2004). A rating decision in May 1993 denied service connection for each of the claimed disorders. The veteran was notified of that decision and did not file a notice of disagreement within one year. The evidence that was of record at the time of the May 1993 rating decision consisted primarily of the veteran's service medical records, the summary of a VA hospitalization in May 1992, and the report of a VA compensation examination in January 1993. Displacement of a right lower incisor and bicuspid teeth The service medical records show that the veteran sustained a closed fracture of the alveolar crest of his lower jaw in the region of teeth ## 24, 25, and 26 (incisors) in July 1965; arch bars were applied. The remainder of the service medical and dental records are completely negative for any mention of problems with or displacement of the veteran's right lower incisor and bicuspid teeth. The summary of the May 1992 hospitalization and the January 1993 examination are silent for mention of any problems with the veteran's teeth. The January 1993 rating decision denied service connection on the basis that the disorder apparently was acute and transitory and healed, inasmuch as the remainder of the service records are completely negative for the disorder. The veteran has submitted no additional medical or dental records concerning this issue since January 1993. At his personal hearing, he testified that he had lost all his teeth due to gum disease. The veteran's hearing testimony concerning this issue provides no new information in support of his claim. In fact, the testimony is actually against his own interest, because it shows that the teeth in question are no longer extant and that they were lost due to a disorder that he does not relate to service, gum disease. In the absence of additional evidence, either medical, dental, or testimonial, providing information supportive of the veteran's claim, the Board finds that new and material evidence, meeting either the old or the revised definition, has not been presented. Therefore, the application to reopen the claim for service connection for displacement of a right lower incisor and bicuspid teeth is not reopened. Hypertrophic left knee strain, residuals of a left knee soft tissue injury, and a tear of the posterior horn of the left knee The service medical records show that the veteran injured his left leg in June 1972 while playing basketball. Although it was initially felt to be a muscle strain, an orthopedic consultant diagnosed a tear in the posterior horn of the left medial meniscus. The veteran again injured his left leg while playing basketball in June 1976; a soft tissue injury of the left knee was diagnosed. A February 1978 clinic note indicates that the veteran again hurt his left knee when he fell off a bicycle. Some edema and tenderness were noted at that time, but the ligaments were intact; left knee strain was diagnosed. At the time of an examination in December 1978, the veteran did not report any problems concerning his left knee. Examiners in December 1978, March 1984, and November 1989 indicated that examination of the veteran's lower extremities was normal. The January 1993 VA examiner noted that the veteran had a history of strain and fracture of the left leg. The veteran complained generally of joint pain. On examination, there was no atrophy, contracture, or limitation of motion of either leg, although there was crepitation in both knees. X- rays of both knees reportedly showed hypertrophic degenerative joint disease. The January 1993 rating decision denied service connection for hypertrophic left knee strain, residuals of a left knee soft tissue injury, and a tear of the posterior horn of the left knee on the basis that, although the record showed that he was treated for those conditions early on during service, they apparently were cured and did not recur, inasmuch as multiple subsequent examination reports during service noted that the veteran's legs were normal. The rating decision also noted that, although the January 1993 examiner diagnosed hypertrophic degenerative joint disease, that disorder was not shown within one year after the veteran's separation from service. Evidence added to the record since May 1993 relative to this issue consists primarily of VA and private treatment records dated from July 1996 to June 2004, duplicate service medical records, and the transcript of a personal hearing at the RO. At his hearing, the veteran testified that his private physician had related his current knee disorders to the injuries he sustained in service. The treatment records show treatment for and diagnoses of osteoarthritis of both knees. In May 2004, a private physician noted diagnoses of degenerative osteoarthropathy of the left knee, with degenerative changes in the articular cartilage and with mild medial subluxation. The Board finds that the evidence added to the record since May 1993 was not previously of record and raises a reasonable possibility of substantiating the veteran's claim. Accordingly, the Board concludes that new and material evidence has been presented and that the veteran's claims are reopened. Considering all of the evidence of record-evidence showing multiple injuries to the veteran's left knee during service, as well as the development of degenerative arthritis in the knee beginning shortly after the veteran's separation from service, the subsequent continuation of symptoms in the knee, including subluxation, and the veteran's personal hearing testimony-and affording the veteran the benefit of the doubt, 38 U.S.C.A. § 5107(b), the Board concludes that service connection for a left knee disability, claimed as hypertrophic left knee strain, residuals of a left knee soft tissue injury, and a tear of the posterior horn of the left knee, is established. Service connection Bilateral hearing loss with tinnitus Impaired hearing will be considered to be a disability 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. 38 C.F.R. § 3.385 (2004). The service medical records are completely negative for complaints, clinical findings, or diagnosis of hearing loss or tinnitus. The report of the veteran's separation examination shows that the tested pure tone thresholds between 500 and 4000 Hertz were all 20 dB or less. The January 1993 examiner did not record any data, subjective or objective, regarding the veteran's hearing loss or tinnitus. The veteran testified at his personal hearing that he believed that he had developed significant hearing loss as a result of working with teletype machines during service. The veteran submitted a January 2004 report by a private physician who diagnosed mild bilateral sensorineural hearing loss. The reported audiometric data reflect pure tone thresholds of 25dB or less at 500, 1000, 2000, and 4000 Hertz, with speech discriminations of 88 percent in the right ear and 84 percent in the left ear. Although the examiner recounted the veteran's reported work in teletype communications and exposure close to generators during service, the examiner did not specifically relate the veteran's hearing loss to service. He also indicated that there was no associated tinnitus or vertigo. Although the audiometric data from the private physician indicate that the veteran appears to have a hearing loss disability as defined by § 3.385, there is no competent evidence that the disability is due to a disease or injury during service or that it was manifest to a compensable degree within one year following the veteran's separation from service. Nor is there any medical evidence showing that the veteran currently has tinnitus. See Brammer v. Derwinski, 2 Vet. App. 266 (1992). Lacking such evidence, service connection is not established. In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b). In this case, the Board finds that the preponderance of the evidence is against the veteran's claim and that, therefore, the provisions of § 5107(b) are not applicable. Therefore, service connection for bilateral hearing loss with tinnitus is denied. Rheumatoid arthritis of the hands and shoulders The service medical records show that the veteran sustained a fracture of his right ring finger during service and periodically had symptoms related to the fracture; service connection for that disability has already been established. The service records are otherwise negative for complaints, clinical findings, or diagnosis of arthritis of the hands or shoulders. A the time of the January 1993 VA compensation examination, the veteran reported joint pain, but did not express any specific complaints about his hands or shoulders, except for the right ring finger fracture. The examiner also did not record any pertinent abnormal clinical findings or diagnosis. An August 2000 VA compensation examination primarily evaluated residuals of the right ring finger fracture. The only noted abnormal clinical finding that was not specifically related to the right ring finger was decreased grip strength of both hands. No diagnosis concerning the veteran's hands (except for the right ring finger) or shoulders was recorded. Several private physicians have variously diagnosed degenerative arthritis of the right shoulder and either osteoarthritis or rheumatoid arthritis of both hands and wrists since 2001. A private orthopedic surgeon submitted a long report of his evaluation of the veteran in May 2004. He diagnosed spinal stenosis and disc disease at multiple levels of the veteran's lumbar and lumbosacral spine, as well as degenerative osteoarthropathy of the lumbosacral and cervical spine, left knee, and both wrists. He commented that the veteran's degenerative joint disease was a form of chronic arthritis commonly found in middle aged and elderly people. The veteran testified at his hearing to his belief that his arthritis in his hands and shoulders was due to his in-service job as a teletype operator. The medical evidence in this case clearly shows that any arthritis that the veteran may have in his shoulders or hands began well after service. There is no evidence of any arthritis in any of those joints during service or for more than 10 years after his separation from service. And no examiner has attributed any arthritis in his shoulders or hands to any disease or injury in service. Nor is there any medical evidence of any specific injury to the veteran's hands (other than the right ring finger) or shoulders during service. Therefore, the Board concludes that service connection for rheumatoid arthritis of the hands and shoulders is not established. In this case, the Board finds that the preponderance of the evidence is against the veteran's claim and that, therefore, the provisions of § 5107(b) are not applicable. Sickle cell anemia The service medical records contain the report of a blood test in February 1984 indicating a positive test for "sickle cell." A March 1984 hemoglobin electrophoresis test was reported to be "consistent A-S disease," although a hematologist indicated that a blood smear was without "sickle cell forms." The service records also show that the veteran was diagnosed with polycythemia during service; service connection has already been established for that disability. A hematology consultant in May 1989 noted that the veteran had relative polycythemia, but stated that no hematologic disease was present. The report of the separation examination does not list a diagnosis of sickle cell anemia. Neither the summary of the May 1992 hospitalization nor the January 1993 VA examiner mentioned any symptoms, clinical findings, or diagnosis relative to sickle cell anemia. A VA compensation examiner and a VA hematologist in August and September 2000 reviewed the claims file and evaluated the veteran and diagnosed polycythemia vera. Neither examiner mentioned sickle cell disease or sickle cell anemia. A private physician in February 2004 listed a diagnosis of sickle cell anemia, but he did not provide the results of any diagnostic testing used to establish that diagnosis or otherwise indicate the basis for making that diagnosis. Moreover, private peripheral blood smears in November 2000 and October 2002 reportedly showed normocytic, normochromic red blood cells; neither examination report noted any sickle cell forms. Accordingly, the Board accords the private examiner's diagnosis little probative weight. At his hearing, the veteran testified to his belief that he was currently anemic and that his sickle cell anemia and service-connected polycythemia were related. He admitted, however, that he was receiving no treatment for sickle cell anemia and that no physician had told him that they were related. Although one blood test in service apparently was read as being positive for "sickle cell," the record does not reflect that any blood examination-in service or subsequently-has revealed any sickle cell forms and no examiner has diagnosed sickle cell disease or sickle cell anemia based on objective laboratory tests. Therefore, the Board concludes that, in the absence of credible evidence that the veteran currently has the claimed disability and lacking evidence that sickle cell anemia was present in or began during service, service connection is not established and so must be denied. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). In this case, the Board finds that the preponderance of the evidence is against the veteran's claim and that, therefore, the provisions of § 5107(b) are not applicable. ORDER The May 1993 rating decision was clearly and unmistakably erroneous in denying service connection for hypertension and arteriosclerotic heart disease. Service connection is granted for hypertension and arteriosclerotic heart disease. New and material evidence not having been presented, the claim for service connection for displacement of a right lower incisor and bicuspid teeth is not reopened. New and material evidence having been presented, the claims for hypertrophic left knee strain, residuals of a left knee soft tissue injury, and a tear of the posterior horn of the left knee are reopened. Service connection is granted for degenerative arthritis of the left knee, with degenerative changes in the articular cartilage and with mild medial subluxation, claimed as hypertrophic left knee strain, residuals of a left knee soft tissue injury, and a tear of the posterior horn of the left knee. Service connection for bilateral hearing loss with tinnitus, for rheumatoid arthritis of the hands and shoulders, and for sickle cell anemia is denied. ____________________________________________ WARREN W. RICE, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs