Citation Nr: 0810593 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 97-31 251 ) DATE ) ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for residuals of stroke. 2. Entitlement to service connection for conjunctivitis. 3. Entitlement to service connection for vision loss. 4. Entitlement to service connection for hearing loss. 5. Entitlement to service connection for tinnitus. 6. Entitlement to service connection for chronic otitis media. 7. Entitlement to service connection for silicosis. 8. Entitlement to service connection for asthma. 9. Entitlement to service connection for chronic obstructive pulmonary disease. 10. Entitlement to service connection for residuals of a left knee disorder, to include swelling. 11. Entitlement to service connection for residuals of a back disorder, to include a punctured back. 12. Entitlement to service connection for residuals of a right shoulder disorder. 13. Entitlement to service connection for residuals of a left shoulder disorder. 14. Entitlement to service connection for post-traumatic stress disorder (PTSD). 15. Entitlement to service connection for major depression. 16. Entitlement to service connection for temporomandibular joint syndrome (TMJ). 17. Entitlement to a compensable evaluation for septoplasty. 18. Entitlement to an initial evaluation in excess of 10 percent for pseudoptosis, right eyelid. 19. Entitlement to an evaluation in excess of 50 percent for chronic sinusitis and rhinitis. 20. Entitlement to an initial evaluation in excess of 10 percent for paralysis of trigeminal nerve. 21. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for headaches. 22. Entitlement to an effective date earlier than April 1, 1999 for the grant of a total disability rating for individual unemployability (TDIU). 23. Whether there is clear and unmistakable (CUE) error in a June 5, 1997 rating decision, which granted service connection for sinusitis and rhinitis, rated as 50 percent disabling effective December 11, 1992. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The appellant served on active duty from June 1974 to July 1978. This matter came before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Oakland, California, Department of Veterans Affairs (VA) Regional Office (RO). In September 1996, the appellant testified at the RO before a hearing officer. In July 2007, the appellant testified before the undersigned Veterans Law Judge sitting at the Oakland RO. At this time, additional evidence was submitted along with a waiver of consideration by the agency of original jurisdiction. Also, the appellate record was held open 2 weeks pending receipt of additional evidence from the appellant. In October 2007, the Board received additional evidence from the appellant that included medical records associated with a disability award of the Social Security Administration (SSA) along with the award letter dated February 1996. The Board notes that the claim for service connection for right eye lid disability, pseudoptosis, was granted by the RO in November 2000 at the 10 percent disability level; therefore, the claim to reopen based on new and material evidence is moot and not for consideration by the Board. The issues of service connection for PTSD, service connection for depression, an initial evaluation greater than 10 percent for pseudoptosis, an initial evaluation greater than 10 percent for paralysis of trigeminal nerve, and entitlement to an effective earlier than April 1, 1999, for the grant of a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Chronic conjunctivitis is not shown. 2. Vision loss is not attributable to service or service- connected disability, and an increase in disability due to service connected disability is not shown. 3. Hearing loss is not shown in service and organic disease of the nervous system is not shown within the initial post separation year; hearing loss disability is not attributable to service or service-connected disability, and an increase in disability due to service-connected disability is not shown. 4. Tinnitus attributable to service or service-connected disability is not shown, and an increase in disability due to service-connected disability is not shown. 5. Chronic otitis media is not currently shown. 6. Silicosis is not currently shown. 7. Asthma is not attributable to service or service- connected disability, and an increase in disability due to service-connected disability is not shown. 8. COPD is not attributable to service or service-connected disability, and an increase in disability due to service- connected disability is not shown. 9. A left knee disability is not attributable to service. 10. A back disability is not attributable to service. 11. A right shoulder disability is not attributable to service. 12. A left shoulder disability is not attributable to service. 13. TMJ syndrome is not shown; complaints of TMJ pain are not attributable to service or service-connected disability, and no increase in non-service-connected TMJ pain due to service-connected disability is shown. 14. The appellant is rated at the maximum schedular level, 50 percent, for chronic sinusitis and rhinitis; he does not have osteomyelitis or constitutional symptoms associated with service-connected sinusitis and rhinitis. 15. Service connection for headaches was denied in a September 1990 rating decision; no appeal was filed within one year of date of notification. The appellant filed a claim to reopen in November 2002; the evidence added to the record since the September 1990 decision is cumulative/redundant of previously reviewed evidence, and does not relate to a previously unestablished fact. 16. The appellant has not alleged any specific error of fact or law in the June 5, 1997 rating decision, which granted service connection for sinusitis and rhinitis, rated as 50 percent disabling effective December 11, 1992. CONCLUSIONS OF LAW 1. Chronic conjunctivitis due to disease or injury was not incurred in or aggravated by service or service-connected disability, and is not proximately due to or the result of service-connected disease or injury. 38 U.S.C.A. §§ 1110, 1113, 1131, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2007). 2. Vision loss due to disease or injury was not incurred in or aggravated by service or service-connected disability, and is not proximately due to or the result of service-connected disease or injury. 38 U.S.C.A. §§ 1110, 1113, 1131, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2007). 3. A bilateral hearing loss disability was not incurred in or aggravated by service or service-connected disability; and organic disease of the nernous system was not manifested within one-year of separation separation; and hearing loss disbility is not proximately due to or the result of service- connected disease or injury. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.385 (2007). 4. Tinnitus was not incurred in or aggravated by service or service-connected disability, and is not proximately due to or the result of service-connected disease or injury. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2007). 5. Chronic otitis media was not incurred in or aggravated by service or service-connected disability, and is not proximately due to or the result of service-connected disease or injury. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2007). . 6. Silicosis was not incurred in or aggravated by service or service-connected disability and is not proximately due to or the result of service-connected disease or injury. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310(a) (2007). 7. Asthma was not incurred in or aggravated by service, and is not proximately due to or the result of service-connected disease or injury. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2007). 8. COPD was not incurred in or aggravated by service, and is not proximately due to or the result of service-connected disease or injury. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2007). 9. A left knee disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). 10. A back disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). 11. A right shoulder disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2007). 12. A left shoulder disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). 13. TMJ syndrome was not incurred in or aggravated by service, and is not proximately due to or the result of service-connected disease or injury. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2007). 14. The appellant is assigned the maximum schedular evaluation, 50 percent, for sinusitis and rhinitis, without osteomyelitis or constitutional symptoms. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.97, Diagnostic Codes 6510- 6514 (2007). 15. The September 1990 rating decision denying service connection for headaches is final; new and material evidence sufficient to reopen the claim has not been submitted. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). 16. The claim of CUE in a June 5, 1997 rating decision, which granted service connection for sinusitis and rhinitis, rated as 50 percent disabling effective December 11, 1992, is dismissed. 38 U.S.C.A. §§ 5103A, 5109A (West 2002); 38 C.F.R. §§ 3.104, 3.105 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), (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) (2005); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must inform the claimant of any information and evidence not of record that (1) is necessary to substantiate the claim as to all five elements of the service connection claim (including degree of disability and effective date of disability (See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); Quartuccio, supra. at 187; 38 C.F.R. § 3.159(b) (2005). As a fourth notice requirement, VA must "request that the claimant provide any evidence in the claimant's possession that pertains to the claim." 38 C.F.R. § 3.159(b) (1); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Notice must be provided "at the time" that VA receives a completed or substantially complete application for VA-administered benefits. Pelegrini at 119 (2004). This timing requirement applies equally to the initial-disability- rating and effective-date elements of a service connection claim. Dingess/Hartman, supra. With respect to the claims for service connection, VCAA letters dated September 2003 (addressing some of the service connection issues) and May 2003 (addressing all the service connection issues) essentially complied with statutory notice requirements as outlined above. Therein, VA notified the appellant of the evidence obtained, the evidence VA was responsible for obtaining, and the evidence necessary to establish entitlement to the benefits sought including the types of evidence that would assist in this matter. Also, VA notified the appellant that he should submit evidence in his possession or alternatively provide VA with sufficient information to allow VA to obtain the evidence on his behalf. The claims were subsequently adjudicated. Therefore, any timing error is cured. See Overton v. Nicholson, 20Vet. App. 427, 437 (2006). In addition to notifying the appellant of the evidentiary requirements for the claims of service connection, the RO advised the appellant of the legal requirement to submit new and material evidence to reopen the previously denied claim for service connection for headache in letters dated June 2001 and May 2005. Moreover, the appellant was informed of the specific reason the claim was previously denied to better allow him to substantiate his claim in May 2005. See Kent v. Nicholson, 20 Vet.App. 1, 10 (2006) (VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit sought by the claimant). In a separate letter dated March 2006, VA notified the appellant of the disability rating and effective date elements of his claim in accordance with the Dingess/Hartman decision. This notice was issued after the initial rating decision and without any readjudication of the claims by the RO. This is error and presumed prejudicial to the appellant unless VA can demonstrate otherwise. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In this case, the Board finds that there is no prejudice to the appellant in this timing error because the claims adjudicated herein are denied as discussed in the following decision, and the benefit sought could not be awarded even had there been no timing defect; as such, the appellant is not prejudiced by a decision in this case. In the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). VA has also satisfied its duty to assist the appellant under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. Service medical records along with VA and private medical records have been associated with the claims folder. SSA records have been associated with the claims folder. Additionally, the appellant was afforded VA examinations and the opportunity to appear for a hearing. The appellant testified at hearings in September 1996 and July 2007. We find that there is no indication that there is any additional relevant evidence to be obtained either by the VA or by the appellant, and there is no other specific evidence to advise him to obtain. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Accordingly, the Board concludes it should proceed, as specific notice as to what evidence the appellant could or should obtain was provided and no additional pertinent evidence was submitted. The claimant has had sufficient notice of the type of information needed to support the claim and the evidence necessary to complete the application. Therefore, the duty to assist and notify as contemplated by applicable provisions, including VCAA, has been satisfied. As such, the Board finds that the development requirements of the VCAA have also been met. VA has done everything reasonably possible to assist the claimant. Accordingly, appellate review may proceed without prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). I. Service Connection Initially, the Board notes the appellant did not engaged in combat and he does not assert that his claimed conditions are a result of combat. Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not for application in this matter. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Certain diseases, such as, arthritis and sensorineural hearing loss, shall be considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service in a period of war or following peacetime service on or after January 1, 1947. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.307(a) (3), 3.309(a). Furthermore, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Additionally, when aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310. 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 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 (2006). A. Conjunctivitis and Vision Loss The appellant seeks service connection for conjunctivitis and vision loss. In various written statements, he reported having chronic problems with inflamed, watering eyes due to surgeries for service-connected sinusitis/rhinitis. The appellant reiterated this belief in sworn testimony at a July 2007 travel Board hearing. He further testified that his right eye was bloodshot even during military service and that he could identify the onset of sinus infection by his eye becoming red. Transcript at 24. Service medical records show that visual acuity was 20/25 in the right eye and 20/20 in the left eye on separation examination. Post service medical records variously show complaints of eye pain associated with findings for sinusitis and refractive error. A December 1998 VA treatment note shows complaints of eye burning and itchiness; allergies were assessed and Claritin prescribed. Optometry testing in Mach 1999 found best corrected visual acuity with a manifest refraction to be 20/20 bilaterally. Visual field tests were normal on the right and revealed mild paracentral depression on the left eye. An April 1999 visual acuity test showed uncorrected vision as 20/40; it was noted that the appellant wore reading glasses and could move about the office without any help. A February 2000 VA treatment note shows a history of right eye irritation for the past year; the assessment was chronic sinusitis. An April 2003 VA treatment note reflects no conjunctival inflammation during a follow-up examination for sinusitis. VA eye examination dated May 2000 reflects uncorrected visual acuity of 20/25 in the right and 20/20 in the left. Extra- ocular movements were full and visual fields were full to confrontation bilaterally. Conjunctivae and sclerae were within normal limits and symmetric. The assessment was pseudoptosis of the right eye related to sinusitis, and meibomian gland dysfunction and acne rosacea, which the examiner stated may be associated with intermittent burning or irritation of the eye and which would not account for asymmetry in the visual complaints. During VA outpatient treatment, the appellant reported that the right eye had beendamaged during prior sinus surgery; he reported poor vision and double vision On examination, there was no diplopia. Additional VA treatment notes dated 2003 show glaucoma suspect based on optic nerve head asymmetry; there was no etiology for eye pain found. A March 2005 VA treatment note shows complaints of eye pain, worse with visual input; history of chronic sinusitis was assessed. On VA eye examination in March 2005, the appellant reported that he could not wear glasses because of pressure on nose and his sinus condition, and that he had poor results with contact lenses. The assessment was chronic sinusitis preventing use of spectacles. In April 2005, the appellant was fit with trial contact lenses. The appellant reported no vision changes or ocular complaints. The assessment was no eye pain, bilaterally. In this case, chronic conjunctivitis is not shown; also, vision loss attributable to service or service-connected disability is not shown, nor is any increase in severity (aggravation) shown. The appellant is not competent to provide a medical opinion or diagnosis. Bostain v. West, 11 Vet.App. 12, 127 (1998), citing Espiritu v. Derwinski, 2 Vet.App. 492 (1992); see also, Routen v. Brown, 10 Vet.App. 183, 196 (1997)("a layperson is generally not capable of opining on matters requiring medical knowledge."). Therefore, in weighing the evidence of record, the Board concludes that the preponderance of the evidence is service connection for conjunctivitis and vision loss. Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The Board notes that, in the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303(c), 4.9. Thus, service connection for the appellant's refractive error cannot be granted because there is no indication of a superimposed disease or injury. B. Hearing Loss Disability, Tinnitus, and Chronic Otitis Media The appellant seeks service connection for hearing loss disability, tinnitus, and chronic otitis media. He argues that surgery for service-connected sinusitis/rhinitis caused these conditions. Specifically, sworn testimony from the July 2007 hearing reflects that the appellant noticed hearing loss, tinnitus, and recurrent inner ear infections following sinus surgery in September 1998. At his July 2007 hearing, the appellant submitted an audiogram along with a letter dated August 2007 from Dr. P.Y. noting the presence of sensorineural hearing loss in the ears with 60 percent and 76 percent speech discrimination in the right and left ear, respectively. Service medical records show no complaints or findings for hearing loss disability, tinnitus, or chronic otitis media. In March 1975, the appellant was seen for left ear complaints. The ears appeared normal. Pain was described as sharp and inconsistent, occurring at different times. Service separation examination dated May 1978 reflects audiometric findings for a 5 decibel loss at the 1000 and 2000 Hertz levels, and a 15 decibel loss at the 4000 Hertz level in the right ear. The left ear showed a 10 decibel loss at 500 Hertz and a 5 decibel loss at 1000 Hertz. There were no complaints or findings for hearing defects. Report of reserves examinations dated June 1980 and June 1981 show no abnormal findings for the ears or hearing. Post service, a private medical examination by Dr. R.B. dated July 1995 shows hearing as normal. A December 1998 VA treatment note reflects ostiomeatal complex patent bilaterally. Report of VA examination dated April 1999 reflects clear ear canals. Report of VA otolaryngological examination dated April 1999 reflects complaints of multiple ear infections and hearing loss. By history, he was stationed aboard 2 aircraft carriers and exposed to noise. Objectively, the eardrums were intact. There was wax and debris in the canals, but no evidence of active infection of the external or middle ear. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 20 30 45 LEFT 25 15 20 40 40 The diagnoses included sensorineural hearing loss, slight to moderate with bilateral tinnitus. A VA treatment note dated April 1999 reflects an assessment for right otitis media, treated with Augmentin and Claritin. On follow-up in March 1999, the appellant reported improvement except for acute sinus infection. The appellant complained of ear irritation and occasional difficulty hearing. The assessment was allergies, sinusitis, and left hearing difficulty. VA treatment notes reflect that, on June 2, 1999, the appellant complained of ear irritation and itching, and tinnitus. By history, he had noise exposure on an aircraft carrier. Objectively, the right ear was slightly erythematous. Nasal saline was recommended. On follow-up June 21, 1999, the appellant reported hearing loss and occasional tinnitus bilaterally. He also reported noticing hearing loss since he recently underwent sinus surgery. Mild to moderate bilateral sensorineural hearing loss was found with good word recognition. In August 1999, the appellant complaint of left ear pain; the assessment was left otitis externa resolved and dry ear care was taught. In December 1999, the appellant complained of persistent ear pain. No ear infection was found. In January 1999, examination revealed no signs of ear infection; chronic sinusitis was assessed. In February and March 2000, the appellant reported ear pain; no infection was found and sinusitis was assessed. A May 2000 VA examination reflects a history of multiple medical conditions including right ear/equilibrium problems due to sinusitis. On VA audiological testing in May 2000, speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 98 percent in the left ear. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 20 40 LEFT 20 15 20 15 15 In May 2000, a VA ears examination was conducted. The appellant complained of hearing loss, tinnitus, and otitis externa. He reported onset of hearing problems after his stroke in 1993, but noted that tinnitus may have preceded the stroke. The appellant indicated that he worked as a corpsman on an aircraft carrier and wore ear protection. The examiner commented that "He has no significant history of otitis media." A history of wax occlusion of the ears was noted. There was no evidence of infection or scarring of the ear drums. The middle ear appeared well-aerated. The examiner stated that: From the patient's examination, there is no evidence of chronic otitis media and no evidence of otitis externa. Neither conditions are currently present nor is there much in the way of history to substantiate this as having been a long term problem. The examiner further indicated that he did not believe there was "a significant amount of potential noise trauma." He lastly opined that tinnitus only occurs once a month and is essentially within normal limits. Private treatment records show ear infections. In May 2002, the impression was acute otitis media. In October 2002, the appellant reported that his left ear felt plugged and possible ear infection was noted. A March 2003 evaluation by Dr. R.D. showed, on examination of the ears, clear and intact tympanic membranes, and clean, without lesions external auditory canals. A July 2003 note showed questionable otitis externa. A December 2003 treatment record from Dr. J.M. reflects mild sensorineural hearing loss and notes acoustic trauma. In weighing the appellant's statements, treatment records, and examinations of record, the Board concludes that the preponderance of the evidence is against service connection for hearing loss disability, tinnitus, and chronic otitis media. The claimed conditions are not shown in service and an organic disease of the nervous system (sensorineural loss) is not shown within the initial post separation year. A hearing loss disability as defined by VA is first documented on VA examination in April 1999, more than 20 years after service. Furthermore, the claimed hearing and ear conditions noted 20 years after service discharge are not shown to have been caused by either service or service connected disability, including surgery for service-connected sinusitis. Also, no increase in severity of the claimed hearing and ear conditions due to service-connected disability is shown. The Board acknowledges the appellant's belief that hearing loss, tinnitus, otitis medial are attributable to sinus surgery and service-connected sinusitis. However, the Board assigns greater probative value to the objective evidence of record as the appellant is not competent to provide a medical opinion as to the cause of his current disorders. Bostain v. West, 11 Vet.App. 12, 127 (1998), citing Espiritu v. Derwinski, 2 Vet.App. 492 (1992); see also, Routen v. Brown, 10 Vet.App. 183, 196 (1997)("a layperson is generally not capable of opining on matters requiring medical knowledge."). Furthermore, the Board observes that the appellant has reported an inconsistent history of onset. He testified in July 2007 that he noticed the claimed conditions after his 1998 sinus surgery; however, on VA examination in May 2000, the appellant reported onset of hearing problems after his 1993 stroke and tinnitus possibly earlier. As such, the Board assigns greater probative value to the objective record rather than the appellant's lay statements. Accordingly, the claims are denied. Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert supra. C. Silicosis, Asthma, and COPD The appellant contends that that he has silicosis, asthma, and COPD. In sworn testimony given in July 2007, the appellant argued that he has silicosis from working on an aircraft carrier during service. The appellant testified that he developed asthma in 1980 and he argued that service- connected sinusitis/rhinitis were "contributory to the asthma." Transcript at 17. Service medical records are negative for silicosis, asthma, and COPD. The appellant had respiratory complaints associated with upper respiratory infections, flu syndrome, and sinusitis/rhinitis. On separation examination dated May 1978, lungs and chest were normal. On private medical examination by Dr. R.B. in July 1995, cardiopulmonary review showed no chest pain, shortness of breath, paroxysmal or nocturnal dyspnea, edema, cough, wheezing or hemoptosis. Breath sounds were vesicular. A pulmonary function test was normal. A medical history dated April 2002 reflects a history of asthma and exposure to mill dust from 1976 to 1978. An August 2002 chest x-ray reflects that the lungs had "no consolidation, pulmonary edema, nor pulmonary nodule." There was no acute cardiopulmonary disease. VA pulmonary function testing in October 2003 revealed findings consistent with obstructive airway disease. In August 2004, the appellant submitted copies of articles about the medical condition silicosis, described as a chronic respiratory condition caused by inhaling dangerous dust. An April 2004 VA treatment note reflects an assessment for shortness of breath. It was noted that diagnoses included COPD, asthma, and obstructive sleep apnea; it was further noted that pulmonary function tests strongly suggest obstructive disease, asthma, rather than COPD "given association with rhinitis and allergic [symptoms]." A VA treatment note dated June 2004 reflects multiple diagnoses, including COPD with mild airflow obstruction. The appellant was instructed on reducing household allergens and the use of an inhaler. In November 2004, VA received private treatment notes dated March 2003 to July 2004 from Dr. R.D. These records show findings for asthma, allergic rhinitis, and chronic sinusitis. No etiology was shown. In May 2005, VA received private treatment records dated March and April 2005 from Pulmonary and Sleep Disorders, Dr. T.E. These records reflect diagnoses for obstructive sleep apnea. No etiology is discussed. Recommendations were weight loss and use of a CPAP machine. In weighing the evidence of record, the Board concludes that the preponderance of the evidence is against service connection for silicosis, asthma, and COPD. None of these respiratory conditions is shown in service. A careful review of the medical evidence shows no diagnosis for silicosis; therefore, the claimed current disability is not shown and service connection is not warranted. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328 (1997). The appellant, as a lay person, is not competent to provide a medical diagnosis for silicosis. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Furthermore, while the record contains diagnoses for asthma and COPD, these conditions are shown many years after service discharge and reliable evidence has not been submitted attributing these diagnoses to service or service- connected disability, nor has evidence been presenting showing an Allen-type aggravation or increase in non-service- connected disability. Again, the appellant is not competent to provide a medical opinion as to the etiology of any current respiratory disorder. Espiritu supra. Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert supra. D. Left Knee, Back, Shoulders The appellant seeks service connection for disability of the left knee, back, and shoulders. At a travel Board hearing in July 2007, the appellant testified that he punctured his back or spine while going up and down his ship's ladders, and that he has shoulder and knee disability related to going up and down the ships' ladders. He referred to his conditions as ongoing aggravation since service. Pre-entrance service examination dated March 1974 reflects normal clinical evaluation; the examiner noted a history of right knee injury at work. Summary of defects shows mild pre-patella bursitis, asymptomatic at present. The report of medical history also dated March 1974 is negative for knee, shoulder, and back complaints. Service medical records reflect complaint of old knee injury in November 1974. In January 1975, the appellant reported a knee problem, stating he could only bend the knee a certain amount. Subsequent examination showed "nothing objective." He was given a trial of quad-sets and whirlpool therapy. Report of examination dated September 1975 reflects normal clinical evaluation of all systems. In October 1976, the appellant presented with complaints of breathing trouble and sharp pain radiating from the neck down the medial back. He was prescribed Dimetapp. In January 1977, the appellant reported chronic right knee problems following injury 5 years ago. In July 1977, the appellant complained of knee locking on one occasional while kneeling. The knee had no tenderness, limitation of motion, swelling, or ligamentous instability. McMurray's testing was negative. The assessment was stable knee. In August 1977, the appellant presented with complaints of right knee swelling and soreness. There was mild swelling, tenderness to touch, and somewhat restricted range of motion. There was no recent history of injury. The impression was strain. In January 1978, the appellant complained of left knee pain, with difficulty walking the ladders and problems with the knee giving out. There was no limitation of motion, swelling, or discoloration. The impression was questionable chondromalacia. In April 1978, the appellant was assessed with an upper respiratory infection and low back spasms (muscle). In May 1978, the appellant reported left shoulder pain of 1 day's duration; range of motion was limited, but there was no pain on palpation or history of trauma. The assessment was bursitis, left shoulder. Report of separation examination dated May 1978 reflects normal clinical evaluation. Annual reserves examination dated June 1980 reflects a nodule mass on the right paraspinal area (lumbar), described as NCD (not considered disabling). Clinical evaluation was otherwise normal. VA treatment records dated January 1981 to July 1983 reflects that the appellant had a possible lipoma of the spine in September 1981. He was seen June 1, 1983, for multiple joint complaints including left thigh swelling and a crackling sound in knee area and low back pain. The assessment was multiple joint pains. A June 1983 treatment note shows complaints of right elbow and shoulder pain; it was noted he worked as mechanic. The assessment was right tennis elbow and bursitis. Also, in June 1983, the appellant was seen for complaints of back pain after being thrown from a horse and landing on a rock. Low back strain was assessed. In July 1983, the appellant complained of neck and back pain. By history, he fell off a horse in June 1983. The diagnosis was muscle strains. Private treatment notes from Dr. W.F. reflect an entry for bilateral knee pain in November 1992 and a diagnosis of status post arthroscopy of the knees for torn meniscus. An August 1993 entry reflects that the appellant had been moving and had fallen, with subsequent bilateral knee complaints. Entries dated October 1993 and January 1994 show ongoing symptoms referable to the knees. A private medical report dated September 1993 by Dr. A.C. reflects a history of right shoulder injury from loading a television on a U-Haul trailer. A February 1994 consultation report by Dr. G.S. reflects, by history, that the appellant had fallen in July 1993 sustaining injuries to the right shoulder and right knee, with right knee arthroscopy in December 1993. Ongoing right shoulder and low back pain were noted. A May 1994 Intake Memorandum reflects that the appellant sought workers' compensation for injuries to the knee, shoulder, and spine incurred during employment as a physical therapy aid. The appellant claimed that, while working, he took the full weight of a patient who slipped in July 1993, which caused knee, shoulder, and spine problems. It was noted that he had a previous workers compensation claim in the mid-1980's for an industrial knee injury. A July 1995 private medical report by Dr. R.B. reflects that the appellant presented with complaints of knee, shoulder, neck, wrist, and low back pain. Objectively, there was no swelling or deformity, and there was full range of peripheral joint motion. The back movements appeared normal, without tilt or list of the pelvis. There was no abnormal curvature or scar. Neurological examination was essentially normal. A September 1995 private medical report by Dr. J.S. reflects a history of knee surgery in 1985 for meniscus problems related to working on his knees as a mechanic. Also, the appellant reported injuring himself from aiding a patient at work in July 1993 and from walking backwards carrying a television August 1993. The assessment was as follows: Status post bilateral knee arthroscopic surgery, on the right in 1985 and 1993, and on the left knee in 1994; residual knee pain secondary to multicompartment degenerative arthritis; mechanical low back pain; and status post right shoulder rotator cuff repair in September 1994. On private medical examination by Dr. M.L. in October 1995, the appellant reported a history of injury to the neck, right shoulder, knees, and back from assisting a patient at work in mid-July 1993. The examiner noted that the appellant worked after this until September 1993 when he had knee surgery. In July 1994, a right rotator cuff repair was performed. By history, the appellant felt popping in the left knee in August 1994, which was treated with Cortisone injection, and he underwent left knee surgery (debridement and meniscal repair) in November 1994. The appellant denied low back problems prior to 1993. He reported right knee surgery in 1985. The examiner stated that he had reviewed a mountain of medical records that showed hospitalizations with Dr. Rohfling in 1985 for chronic degenerative arthritis of the left knee, post-arthroscopic partial medial meniscectomy, and acute mild sprain; also the examiner found records dating to June 1984 showing knee problems from stacking tires and riding a horse, and from 1985 showing left knee re-injury from playing volleyball. A letter dated August 1996 from Dr. Y.S. to Dr. T.S. reflects that the appellant had right scapular pain and upper extremity numbness without radicular pain related to exercises with weights, assessed as probable thoracic outlet syndrome due to hypertrophy of the scalenus musculature. In May 2000, a VA examination was conducted. By history, the appellant was a certified medical assistance since 1985 and, in April 1993, he was diagnosed as having had a stroke with residual loss of balance. The appellant reported that he had right shoulder and right knee pain in July 1993 as he supported an unsteady patient. He had right knee surgery in 1993, right shoulder surgery in July 1994, and left knee surgery in November 1994. The appellant complained of back pain. The diagnoses included marked lumbosacral spondylosis and root irritation. A handwritten note dated August 2000 from VA Dr. L. reflects multiple diagnoses to include fibromyalgia, degenerative joint disease, and sensory polyneuropathy. Private treatment notes dated March 2001 from Dr. K.L. reflect that the appellant is a very large man and that a stool collapsed under him at a restaurant, causing significant injury to his right shoulder. It was noted that his right shoulder had been previously operated. A letter dated May 2001 from Dr. K.L. to Dr. J.A. reflects that the appellant was seen for bilateral knee arthritis and that he would like arthroscopic debridement. It was noted that he had a fall from a chair and feels his knee condition is due to that. A January 2001 VA treatment note reflects, by history, that the appellant fell off a bar stool in May 1999. A February 2001 VA note reflects "bilateral knee pain of unknown etiology. Arthralgia." A February 2001 right shoulder x- ray showed minimal degenerative changes. An August 2001 VA note shows that the appellant underwent rotator cuff repair, with excellent results, in 1994. The assessment was moderate AC-joint arthritis. Another August 2001 note reflects an assessment for rotator cuff syndrome versus humeral fracture. It was noted that a March 2001 MRI showed humeral fracture. Repeat MRI was ordered. An August 2001 MRI of the left knee showed findings consistent with previous meniscectomy and osteoarthritis, without evidence of a tear. VA treatment notes dated March to September 2001 reflect diffuse musculoskeletal complaints to include the knees and right shoulder. Diagnoses for right shoulder were bursitis, arthritis, and adhesive capsulitis. Miscellaneous medical records concerning the back include a December 2001 MRI report showing that there were complaints of pain radiating down legs since November 2001; the impression was degenerative disc bulge at L4-5 and L3-4 disc degeneration. A January 2002 x-ray study was conducted based on complaints of back pain after a fall. Findings revealed minimal marginal spurring at L-4, otherwise normal vertebral bodies and disc spaces, with no acute fracture, spondylolysis, and spondylolisthesis. A medical history prepared by the appellant in April 2002 shows a history of removal of fat tissue from the low back. A June 2002 operative report from Healthsouth Surgicenter reflects that the appellant was diagnosed with left knee internal derangement and left chondromalacia. Arthroscopic surgery was performed along with a meniscectomy and chondroplasty. VA treatment note dated October 2003 reflects that the appellant could not actively abduct right shoulder past 90 degrees; there was full passive abduction. There was tenderness over the subacromial bursa. The spine had tenderness. The knees had crepitus; no effusion was shown. Additional VA treatment notes reflect a myriad of musculoskeletal complaints, including pain of the right shoulder and knees. May and June 2004 treatment notes reflects complaints of the right shoulder pain and knees, assessed as questionable degenerative joint disease of the right shoulder and degenerative joint disease of the knees. Analysis In weighing the evidence of record, the Board concludes that the preponderance of the evidence is against service connection for the left knee, back, and shoulders. A chronic left knee, back, and shoulder disability is not shown in service and arthritis is not shown in the initial post separation year. Additionally, reliable evidence has not been presented attributing any currently shown abnormal pathology of the left knee, back, or shoulders to service. The Board also finds that any assertion of continuity of symptomatology since service is not credible and not supported by the record. See 38 C.F.R. 3.303. The Board accepts that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology; however, in a merits context, the lack of evidence of treatment may bear on the credibility of an appellant's assertions. Savage v. Gober, 10 Vet.App. 488 (1997). Here, there is a roughly 5 year gap between service and post-service complaints and/or findings, and the appellant has provided inconsistent medical histories, which do not include any reliable complaint of symptoms dating from service or having their onset in service. Moreover, the appellant related the onset of left knee problems to post service injuries while undergoing medical evaluation and the record shows post-service injuries with subsequent complaints involving the left knee, back, and shoulder. Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert supra. Specifically regarding the left knee, service medical records reflect an isolated complaint of left knee pain with difficulty walking the ladders and the knee giving out; however, there was no abnormal left knee pathology found on evaluation and the impression was questionable chondromalacia. Post service, the first documented evidence of a left knee problem is 5 years after service discharge in June 1983. At that time, the appellant complained of a left knee crackling sound along with other musculoskeletal complaints and the assessment was multiple joint pain. There were no subsequent complaints until November 1992, nearly a decade later. Medical records dated from November 1992 reflect complaints of left knee pain related to a fall while moving. See August 1993 Private Treatment Note. The appellant underwent left knee arthroscopy (debridement and meniscal repair) in November 1994. The appellant was diagnosed with bilateral knee arthritis in May 2001 and reported that this condition was related to a stool collapsing under him. See May 2001 Letter by Dr. K.L. Various medical records dated 2001 reflect a history of falling off a bar stool in/around May 1999. The record shows more recently that the appellant was diagnosed with left knee internal derangement and chondromalacia. In June 2002, the appellant underwent arthroscopic surgery with meniscectomy and chondroplasty of the left knee. See June 2002 Private Operative Report. Apart from the appellant's unsubstantiated, and incredible history, of left knee disability since service, the evidence shows no injury or disease of the left knee in service. Arthritis is not shown in the initial post separation year, and the current abnormal left knee pathology has not been attributed to injury or disease incurred in service. In view of the above, the claim is denied. Regarding the right shoulder, service medical records are negative for complaints and abnormal pathology. Report of separation examination dated May 1978 reflects normal clinical evaluation. The first documented evidence of a right shoulder problems is 5 years after service discharge in June 1983. VA treatment note dated June 1983 shows complaints of right shoulder pain assessed as bursitis. There are no subsequent documented complaints until nearly 10 years later in September 1993. Medical records dated from September 1993 show a history of right shoulder injury from loading a television onto a U-Haul trailer. Subsequently dated medical reports show ongoing right shoulder complaints. The appellant's medical history is inconsistent regarding the onset of right shoulder problems. In addition to the U-Haul trailer injury, the appellant related the onset of right shoulder problems to a July 1993 work incident, wherein he took the full weight of patient who had slipped. See May 1994 Intake Memorandum; see also, May 2000 Report of VA Examination. Still later, the appellant reported onset of right shoulder problems related to a barstool collapsing underneath him. See March 2001 Private Treatment Notes. The medical record shows that appellant underwent rotator cuff repair in September 1994 and the medical record shows current diagnoses for arthritis, bursitis, adhesive capsulitis, and degenerative joint disease. As indicated above, the Board finds that a right shoulder condition is not shown in service, arthritis is not shown in the initial post separation year, and that reliable evidence has not been presented attributing any currently shown abnormal right shoulder pathology to service. Furthermore, the Board finds that the appellant's testimony concerning ongoing right shoulder problems from service and aggravation not credible in view of his inconsistent medical history and considerable gap between service discharge and documented abnormal right shoulder pathology. As such, the appellant's lay statements have diminished probative value and the Board assigns greater probative value to the objective evidence of record. Accordingly, the claim is denied. As for the appellant's left shoulder claim, the Board acknowledges that service medical records reflect a diagnosis for bursitis in May 1978. However, report of separation examination also dated May 1978 reflects normal clinical evaluation. There are essentially no documented post service left shoulder complaints. Competent evidence of abnormal left shoulder pathology has not been presented. Accordingly, the claim is denied. Lastly, regarding the back claim, a review of the evidence discloses isolated complaints in service for sharp pain radiating from the neck down the medial back in October 1976 and low back spasms associated with a respiratory infection in April 1978. However, no abnormal back pathology shown in service and report of separation examination dated May 1978 reflects normal clinical evaluation. While the appellant testified that he punctured his back while going up/down the ship ladder, no injury is documented in the service records. VA medical records show that the appellant was seen for possible lipoma of the spine in September 1981 and complaints of low back pain in June 1983, more than 5 years after service. In June 1983, the appellant reported being thrown from a horse and injuring his back. Low back strain was assessed. There are no further documented back complaints until February 1994. A February 1994 medical consultation report show a history falling in July 1993 with ongoing back complaints. A May 1994 Intake Report in connection with the appellant's workers compensation claim reflects that he had a cumulative type injury to multiple joints including the spine; the appellant related the onset of back problems to a July 1993 work incident, wherein he took the full weight of patient who had slipped while working as an aide. See May 1994 Intake Memorandum; see also, October 1995 Report of Private Medical Examination. From about May 2000, various back diagnoses have been rendered to include spondylosis, spondylolisthesis, degenerative disc disease at L3-4, and degenerative disc bulge at L4-5. There is considerable medical evidence of record, but the medical history associated with these records show no history of in-service back injury to include a puncture wound. Reliable evidence has not been presented attributing any currently shown abnormal back pathology to service (including the complaints of pain and spasm noted in service as well as the alleged puncture wound). Furthermore, the Board finds that the appellant's testimony concerning ongoing back problems since service, and his vague assertion of aggravation, not credible in view of his medical history showing a variety of post service back injuries and the considerable gap between his service discharge and any documented abnormal back pathology. Therefore, the Board finds that the appellant's unsupported lay statements have diminished probative value and assigns greater probative value to the objective evidence. As indicated above, the weight of the evidence is against the claim; therefore, it is denied. E. TMJ The appellant testified that he has had TMJ pain since surgery for service-connected sinusitis in September 1998, which he was told was a residual of that surgery. He denied regular treatment, but reported that he has "the condition" monitored during his teeth cleaning visits three times a year. In weighing the evidence of record, the Board concludes that the preponderance of the evidence is against service connection for TMJ syndrome. TMJ syndrome is not shown. While the medical record shows that the appellant has had multiple surgeries for service-connected sinusitis and complaints of TMJ pain, TMJ syndrome has not been diagnosed and the appellant's complaints of TMJ pain have not been medically attributed to service or surgery associated service-connected sinusitis. Also, the evidence of record does not show any Allen-type increase in disability. A VA treatment note dated August 2001 reflects no clicking or popping of TMJs and excellent range of motion in all directions. Panorex showed right condyle TMJ and findings suggestive of anterior osteophyte of the left TMJ. The assessment was unspecified myofacial pain disorder with excellent function of TMJs. VA treatment notes dated May 2004 and November 2005 reflect complaints that his "teeth are sore and his jaw hurts." Absent evidence of a current disability attributable to service or service-connected disability, or any aggravation of a non-service-connected disability by service-connected disability, the weight of the evidence is against the claim for service connection for TMJ syndrome. The Board assigns greater probative value to the objective medical record rather than the unsubstantiated lay assertions of the appellant as he is not competent to provide a medical diagnosis or opinion as to etiology. See Espiritu supra. Accordingly, the claim is denied. As the evidence is not in equipoise, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert supra. II. Claims for Increase: Sinusitis/Rhinitis The appellant's service-connected sinusitis and rhinitis is rated under the Diagnostic Code 6510. Diagnostic Code 6510 provides a maximum 50 percent evaluation for chronic sinusitis or pansinusitis following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97, Diagnostic Code 6510. The appellant is currently evaluated at the maximum 50 percent disability level and there is no suggestion in the record that any other basis for increase is warranted, to include osteomyelitis. We note that frequent episodes of osteomyelitis (acute, subacute, or chronic) with constitutional symptoms is rated at the 60 percent disability level. A 100 percent disability evaluation is also provided. See 38 C.F.R. § 4.71a, Diagnostic Code 5000. However, diagnostic code 5000 is not applicable here as neither frequent osteomyelitis nor constitutional symptoms are shown in the evidence of record. There are no other applicable diagnostic codes for consideration. As there is no legal basis upon which to award an increased schedular evaluation or separate evaluations for sinusitis and rhinitis, the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). With respect to the VCAA, the U. S. Court of Appeals for Veterans Claims has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of that claim is based on statutory interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). In the instant case the facts are not in dispute. Resolution of the appeal is dependent on interpretation of the regulations pertaining to the assignment of disability ratings for sinusitis and rhinitis. As indicated above, the record shows that the appellant is already receiving the maximum disability rating available for sinusitis and rhinitis under the applicable rating criteria. Therefore, because no reasonable possibility exists that would aid in substantiating this claim, any deficiencies of VCAA notice or assistance are rendered moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). III. Claims to Reopen Service connection for headaches was denied by the RO in September 1990. The appellant was notified of that decision. No appeal was filed and that decision became final. When the RO has disallowed a claim, it may not thereafter be reopened unless new and material evidence is submitted. 38 U.S.C.A. §§ 5108, 7105. If no notice of disagreement is filed within the prescribed period, the action or determination shall become final and the claim will not thereafter be reopened or allowed except as may be provided by regulations not inconsistent with this title. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.1103. Under the pertinent laws and regulations, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim, which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Court has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). In this case, the appellant filed a claim to reopen in November 2002. For claims filed on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decision-makers. 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) (2007). In September 1990, the RO notified the appellant that service connection for headaches was denied because headache disability was not shown in service or on Reserves physical examination three years later. At the time of this decision, service medical records and records of VA outpatient treatment from November 1989 to July 1990 were considered, showing headache complaints associated with upper respiratory and sinusitis infections. In a November 2002 statement, the appellant requested to reopen the claim for chronic headaches. He reported treatment for headaches in service and since service. In May 2006, the RO denied the claim to reopen because headaches, although currently documented in the medical records, were shown to be related to service-connected sinusitis, and it was noted that the rating for sinusitis includes symptoms of headaches. Evidentiary submissions since the September 1990 rating decision include voluminous VA and private medical records. These records reflect headache complaints associated with upper respiratory and sinusitis infections. Furthermore, in pertinent part, these records show that the appellant reported in 2002 daily chronic headaches since sinus surgery in 1998; the examiner noted that these were most likely secondary to analgesic rebound and advised the appellant to taper off Tylenol 3. In July 2007 sworn testimony, the appellant reported headache with sinus infection in service assessed as sinus headaches; he further testified that his current headache problems are associated with flare-ups of service-connected sinusitis. The Board has carefully reviewed the recent evidentiary submissions and concluded that new and material evidence has not been submitted. The recent evidentiary submissions do not tend to establish an unestablished fact as it does not show a chronic headache disability, distinct from sinusitis. None of the evidentiary defects present at the time of the previous decision have been resolved. Furthermore, the appellant's contentions are cumulative of his initial claim. Therefore, the claim may not be reopened. There is no doubt to be resolved. See Gilbert supra. IV. CUE The appellant contends that CUE was committed in the RO's June 5, 1997, rating decision which granted service connection for sinusitis and rhinitis at the 50 percent disability level effective from December 11, 1992. CUE claims are based on the evidence of record and law in effect at the time of the challenged VA decision, and the notice and duty to assist provisions of current law are inapplicable to CUE claims. Livesay v. Principi, 15 Vet. App. 165 (2001). Previous determinations, which are final and binding, including decisions of service connection, degree of disability and other issues, will be accepted as correct in the absence of CUE. 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). To establish a valid CUE claim, a claimant must show that either the correct facts, as they were known at the time, were not before the adjudicator, or that the statutory or regulatory provisions extant at the time were incorrectly applied. Russell v. Principi, 3 Vet. App. 310 (1992) (en banc). "Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts: it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). Clear and unmistakable errors "are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell, 3 Vet. App. at 313-14. The Court has propounded a three-prong test to determine whether clear and unmistakable error is present in a prior determination: "(1) [E]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made;" and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question." Damrel v. Brown, 6 Vet. App. 242, 245 (1994), quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc); accord Richardson v. Nicholson, 20 Vet. App. 64, 68-69 (2006) (setting forth CUE requirements). "CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of law, that 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. Brown, 6 Vet. App. 40, 43-44 (1993) (emphasis in original); accord Richardson, 20 Vet. App. at 68-69 (noting that "the error must have 'manifestly changed the outcome' of the prior decision"). If an appellant wishes to reasonably raise CUE, there must be some degree of specificity as to what the alleged 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 result would have been manifestly different but for the alleged error. There is a presumption of validity to otherwise final decisions, and where such decisions are collaterally attacked--and a CUE claim is undoubtedly a collateral attack--the presumption is even stronger. See Grover v. West, 12 Vet. App. 109, 111-112 (1999); Daniels v. Gober, 10 Vet. App. 474, 478 (1997); Caffrey v. Brown, 6 Vet. App. 377, 383-384 (1994); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); see also Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999) (expressly adopting the "manifestly changed the outcome" language used in Russell). In this case, the appellant's CUE claim must fail. The RO's June 1997 decision was predicated on a claim for increase for septoplasty received on December 11, 1992, and medical evidence showing chronic sinusitis related to service. Specifically, the evidence of record included service medical records showing numerous sinus complaints and treatment along with post service treatment records showing that the appellant had multiple sinus surgeries in 1994. The RO assigned a 50 percent rating under diagnostic code 6510, 38 C.F.R. § 4.97 (1997). A 50 percent rating was the maximum schedular rating available. The appellant's contention that the effective date for the award of service connection for sinusitis and rhinitis should extend back to his original claim of June 1983 is without merit. The RO granted service connection for status post septoplasty in a September 1983 decision based on service medical records; no appeal was filed and that decision became final. The appellant has not alleged any specific error of fact or law. Accordingly, the Board finds a valid claim of CUE has not been presented and the claim must be dismissed without prejudice. ORDER Service connection for conjunctivitis is denied. Service connection for vision loss is denied. Service connection for hearing loss is denied. Service connection for tinnitus is denied Service connection for chronic otitis media is denied. Service Connection for silicosis is denied. Service Connection for asthma is denied. Service Connection for COPD is denied. Service Connection for residuals of left knee disorder is denied. Service Connection for residuals of back disorder is denied. Service Connection for residual of right shoulder disorder is denied. Service Connection for residual of left shoulder disorder is denied. Service Connection for TMJ syndrome is denied. The application to reopen the claim for service connection for headaches is denied. The motion for revision of the June 5, 1997, rating decision assigning a 50 percent rating for sinusitis and rhinitis effective from December 11, 1992, on the basis of clear and unmistakable error is dismissed without prejudice. REMAND Service Connection for Residuals of Stroke The appellant seeks service connection for residuals of stroke. In various written statements to VA, he argued that he sustained a stroke (cerebral vascular accident) because of frequent sinus infections and surgeries performed for service-connected sinusitis/rhinitis. The appellant reiterated this belief in sworn testimony at a July 2007 travel Board hearing. The Board observes that the appellant argued in 1995 in connection with a worker's compensation claim that his stroke was caused by working with a patient who should have been quarantined for an infectious virus. During private evaluation in April 1993 for unsteadiness, the appellant was assessed with having had a stroke based on MRI findings. Report of VA examination dated May 2000 reflects stroke history and a diagnosis for moderate ataxia of the right limbs after cerebellar artery thrombosis. In addition, voluminous private and VA medical records have been associated with the claims folder. These records include conflicting medical opinions concerning the etiology of the appellant's 1993 stroke. In May 1993, Dr. Sui, a neurologist, noted that the appellant had a history virus shortly before his stroke and that he believed the underlying cause of the brain lesions shown by MRI is an infectious one, but he could not rule out infarct. The impression was right cerebellitis versus infarct, and left medial temporal inflammation versus infarct. An MRI showed sinusitis and retention cyst on the left. In November 1994, Dr. Y. Stavropoulos reported that it was medically probable that stroke was due to venous thrombophlebitis due to sinusitis rather than vascular arterial changes. In July 1995, Dr. R. Blau examined the appellant in conjunction with his worker's compensation claim for stroke. He opined that the appellant's assertion that he contracted a viral infection that caused his stroke could not be corroborated, and would be pure speculation. Dr. Blau sated that "I could only say that there was a vascular inflammation that did cause a temporary disability. He noted that the most common cause of these vascular syndromes are clots or emboli, but that the appellant's stroke may have been inflammatory based on the MRI findings and rapid recovery. In December 1997, Dr. Sui stated that stroke was "probably due to infectious source both sinusitis and flu." VA medical records dated November 1998 reflect that stroke was due to vertebral artery dissection. Report of VA neurology examination dated April 1999 reflects that It is difficult to say whether the episodes of sinusitis led to his [the appellant's] stroke. Usually, episodes of recurrent sinusitis can lead to meningitis and when a person has meningitis he can develop strokes as well. But review of the C file indicates that the veteran never had meningitis. I doubt that the veteran's recurrent sinusitis led to his stroke." Following a VA neurology examination in May 2000, VA requested a medical opinion addressing the relationship, if any, between stroke and service-connected sinusitis. In response, a VA neurologist submitted a handwritten note dated August 2000 stating simply that "There is no literature to support any connection between sinusitis and stroke." There is no indication that the claims folders or existing the medical opinions of record were reviewed or considered. A February 2001 VA treatment note shows "stroke of unclear etiology, possible syncopal events with head turning at his time." An addendum dated February 2001 reflects that there was an extensive work-up for stroke etiology which suggested stroke was most likely secondary to spontaneous vertebral artery dissection. As indicated above, there are varying medical opinions of record and no medical opinion has been rendered with consideration of the entire record, in particular with consideration of the various medical opinions of record. Therefore, the Board finds that a VA medical opinion is necessary to ascertain, if possible, the etiology of the appellant's 1993 stroke. Service Connection for PTSD The appellant seeks service connection for PTSD. Following the appellant's July 2007 hearing before a Veterans Law Judge, he submitted a letter from a clinical psychologist dated July 2007 showing treatment for PTSD. Treatment records associated with this medical care have are not associated with the claims folder. VA's duty to assist obligations include the duty to request pertinent evidence such as these newly identified treatment records. Therefore, pending receipt of these records, a decision on the psychiatric claims, PTSD and depression, is deferred. Claims for Increase The appellant also seeks a compensable evaluation for septoplasty and initial evaluations in excess of 10 percent for both pseudoptosis and paralysis of the trigeminal nerve. With respect to the claims for increase, the Board finds that VCAA notice was inadequate. The post-adjudicatory Dingess/Hartman notice letter dated March 2006 is not followed by a readjudication of the claims. As such, the fundamental fairness of the adjudication process is compromised here. See Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). Earlier Effective Date Historically, the appellant filed a claim for increase for septoplasty and for service connection for sinusitis in December 1992, which was denied by a rating decision dated April 1993. In February 1994, the appellant filed a claim for service connection for residuals of stroke, which was denied by a September 1994 rating decision. In May 1996, the appellant filed a claim for TDIU, which was denied by a July 1996 rating decision. Subsequently, the appellant filed numerous other claims for service and appealed the denial of TDIU benefits. An October 1997, continued the denial of TDIU, noting that the appellant's combined rating 50 percent for septoplasty (0 percent) and sinusitis/rhinitis (50 percent), which did not meet the schedular criteria, and that the evidence did not show he was unemployable due solely to service-connected disability. In a November 2000 rating decision service connection for pseudoptosis was granted at the 10 percent disability level. The combined rating was 60 percent from April 1, 1999. In an April 2005 rating decision, TDIU was granted from April 1, 1999, based on evidence showing unemployability due to sinusitis, multiple surgeries and associated complications, in conjunction with the appellant meeting the schedular criteria of 38 C.F.R. § 4.16 as of April 1, 1999. The 50 percent disability for a sinusitis/rhinitis disorder, and the 10 percent evaluation for pseudoptosis was sufficient to bring the combined rating to 60 percent or more, qualifying for a TDIU under the provisions of 38 C.F.R. § 4.16(a). The effective date of April 1, 1999, was established because it was the date the veteran met the TDIU schedular criteria, based on the date he filed the claim for service connection for pseudoptosis, ultimately leading to the grant of a TDIU. The Board notes that pseudoptosis is a disability arising from a common etiology as sinusitis and, as such, the rating is treated as a single 60 percent disability rating for purposes of TDIU. SSA determined in November 2001 that the appellant was disabled under the Social Security Act since August 1996 and the appellant contends that he is entitled to an effective date for TDIU as of 1993 because he had an infarct (stroke) in 1993 that rendered him unemployable and the infarct, in part, was due to service-connected sinusitis. In view of the remand of the issue of service connection for stroke, the Board must defer consideration of the claim for an earlier effective date since the appellant's effective date claim is predicated on entitlement to service connection for stroke. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain all private treatment records from M. Dearing, Psy.D., after securing the necessary release. All attempts to procure these records should be documented and associated with the claims folder. 2. A VA medical opinion should be obtained that addresses whether service-connected sinusitis and rhinitis (including surgeries therefore) caused the appellant's 1993 stroke. The examiner should review the claims folder and the opinion should acknowledge the various medical opinions of record. The opinion should reflect a thorough review of the pertinent medical records and a medical rationale for all conclusions reached. 3. The appellant should be given fully compliant VCAA notice regarding his claims for increase, to include notice that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on his employment and daily life. See Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). 4. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs