Citation Nr: 1033730 Decision Date: 09/09/10 Archive Date: 09/21/10 DOCKET NO. 06-36 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence to reopen a claim for service connection for low back and leg pain, secondary to residuals, arthrotomy, right knee with chondromalacia, has been received. 2. Entitlement to service connection for right ear hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for mononucleosis. 5. Entitlement to increased rating evaluation for residuals, arthrotomy, right knee with chondromalacia, currently at 20 percent evaluation. 6. Entitlement to service connection for diabetes mellitus, claimed as due to herbicide exposure. 7. Entitlement to an initial compensable evaluation for left ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Yoo, Associate Counsel INTRODUCTION The Veteran had active service from April 1971 to July 1974. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of January 2006 by the Department of Veterans Affairs (VA) St. Petersburg, Florida Regional Office (RO). The Veteran was scheduled to appear for a hearing before the Board in August 2009; however, he canceled his hearing and submitted additional evidence for consideration. Therefore, his hearing request is deemed withdrawn. See 38 C.F.R. §§ 20.702(d); 20.704(d) (2009). The issues of entitlement to service connection for diabetes mellitus, type II, claimed as due to herbicide exposure and entitlement to an initial compensable evaluation for left ear hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A claim of service connection for low back and leg pain, low back and leg pain, secondary to residuals, arthrotomy, right knee with chondromalacia was previously denied by the RO in May 1996. 2. Evidence received since the May 1996 decision is does not raise a reasonable possibility of substantiating the claim of service connection for low back and leg pain, secondary to residuals, arthrotomy, right knee with chondromalacia. 3. The Veteran's right ear hearing loss is at least as likely as not related to the Veteran's active military service. 4. The evidence is at least in relative equipoise on the question of whether the Veteran's current tinnitus is related to acoustic trauma in active service. 5. The evidence of record does not demonstrate that the Veteran has mononucleosis, or any residuals thereof. 6. The Veteran's right knee disorder is not manifested by severe recurrent subluxation or lateral instability, flexion limited to 15 degrees or less, extension limited to 20 degrees or more, or ankylosis. CONCLUSION OF LAW 1. The May 1996 RO decision denying the claim of service connection for low back and leg pain, secondary to residuals, arthrotomy, right knee with chondromalacia is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2009). 2. New and material evidence sufficient to reopen the claim for service connection for low back and leg pain, secondary to residuals, arthrotomy, right knee with chondromalacia has not been presented. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2009). 3. The criteria for service connection for right ear hearing loss have been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2009). 4. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 3.303 (2009). 5. The criteria for service connection for mononucleosis have not been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). 6. The criteria for a disability rating in excess of 20 percent for chondromalacia of the right knee with instability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Code 5257 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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. Specific to the request to reopen, the claimant must be notified of both the reopening criteria and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The notice requirements described above apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In August 2005, the agency of original jurisdiction (AOJ) provided the notices required by 38 U.S.C.A. § 5103(a) (West 2002), 38 C.F.R. § 3.159(b) (2009) and by Kent. Specifically, the AOJ notified the Veteran of information and evidence necessary to substantiate claims for service connection; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. However, this notice did not include the initial disability rating and effective date elements of the claim as required by Dingess. In June 2009, the notification pursuant to Dingess was sent to the Veteran. Although the notice letter postdated the initial adjudication, the claim was subsequently readjudicated and no prejudice is apparent. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of fully compliant notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). The Board also finds that all relevant facts have been properly developed. The Veteran's available service treatment records and VA treatment records have been obtained, and the Veteran has not indicated any private treatment records VA should attempt to obtain on his behalf. Further, the Veteran was also offered the opportunity to testify at a hearing before the Board, but he canceled his request and was deemed withdrawn. See 38 C.F.R. §§ 20.702(d); 20.704(d). Overall, the Board does not have notice of any additional relevant evidence which is available unobtained. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the claims, and no further assistance to the Veteran with the development of evidence. Consequently, the duty to notify and assist has been met. New and Material Evidence Service connection may be granted for a disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. To establish service connection for the claimed disorder, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R § 3.303 (2008); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). A May 1996 decision denying service connection for low back and leg pain, secondary to service connected arthrotomy, right knee with chondromalacia, is final based on the evidence then of record. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2009). However, a claim will be reopened if new and material evidence is submitted. 38 U.S.C.A. §5108; 38 C.F.R. § 3.156(a). 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 and 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) (2009). The May 1996 rating decision denied the claim of service connection for a low back and leg pain condition because the evidence did not show that his service connected arthrotomy, right knee with chondromalacia caused his low back and leg pain. Evidence submitted for this claim includes VA and private treatment records reporting treatment for a back and leg problems since 1996. Among other things, the Veteran submitted a July 1997 letter from a private physician, Dr. G. F. Kellogg, stating upon examination, the Veteran's "chronic arthritis, chronic lumbar sacral strain and muscular spasm is stable and a 1996 EMG shows normal pattern without conduction defects in the lower extremities detected at that time." Furthermore, Dr. Kellogg opined, "[t]here are no possible medical facts to ascertain the initial spondylosis and if precipitated by previous trauma. Therefore any dysfunction and discomforts can not be pinpointed as to either cause or time documentation." The Veteran was afforded a VA examination in November 2005 where he reported having back pain during service but worsened in the past few years. He stated the pain has interfered with his sleep and work. The lumbar spine films from October 2005 revealed "spondylosis with probably bilateral spondylisis at L5. Grade 1 spondylolisthesis L5 on S1. Probably degenerative retrolisthesis L2 on L4 and L4 on L5. Small left lower pole renal calculus." The examiner opined, "I find no relationship between the right knee... and low back conditions. Veteran has a diffused joint pain consistent with age, body mechanics, and osteoarthritis." The Veteran underwent another VA examination in February 2009 which reported a diagnosis of bilateral spondylolysis at L5 with first degree spinal listhesis of L5 on S1, degenerative disc disease and degenerative facet disease. The examiner opined his lumbar spine condition was not "caused by or related to service- connected right knee condition." In addition, there was "no cause-effect relationship between the right knee mild degenerative changes and lumbar spine degenerative disc disease with spondylosthesis as per medical literature." Although the evidence received since the December 1998 decision is "new," in that the records were not previously seen, these numerous VA and private treatment records are not material since they are merely cumulative of medical evidence previously considered by the RO. More importantly, they do not raise a reasonable possibility of substantiating either claim, in that they do not suggest that the Veteran's back and leg condition is related to his service nor do they suggest that it is secondary to his service connected arthrotomy, right knee with chondromalacia. In addition to his theory of secondary causation, the Veteran stated he may have injured his back during service when he sustained injury to his knee. As his knee injury was more substantial, the Veteran alleges his back injury may have gone unnoticed. However, upon review of the Veteran' in-service treatment records, the Veteran sustained injury to his right knee in July 1971. The Veteran underwent an exploratory arthrotomy with advancement of vastus medialis in February 1974. There are no complaints, treatments, or diagnosis of a back condition in the Veteran's in-service treatment records. Furthermore, the Veteran's April 1974 separation examinations are also absent of any back injury/pain sustained during service. According the record, the Veteran first reported back and leg pain in February 1996 in his claim for service connection. There is no evidence of treatment or diagnosis of any back or leg condition secondary to his service connected arthrotomy, right knee with chondromalacia prior to February 1996; approximately twenty two years after the Veteran's discharge from military service. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a lapse of time is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3rd. 1330, 1333 (Fed. Cir. 2000). The Veteran submitted lay statements (from his wife and coworkers) regarding his current back and leg pain. The Board also notes the Veteran's contention that his current conditions are either related secondarily to his service connected arthrotomy, right knee with chondromalacia or sustained during service. However, the Court has also held that lay persons, such as the Veteran, are not qualified to offer an opinion that requires medical knowledge, such as a diagnosis or an opinion as to the cause of a disability that may be related to service. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2007) (holding that a layperson may provide competent evidence to establish a diagnosis where the lay person is "competent to identify the medical condition"). Here, the Veteran is capable of recalling events that took place at the during service such as his knee injury, however, the Veteran is not competent (i.e., professionally qualified) to diagnose disorder or as to the cause of his back and leg condition. Because the evidence received since the May 1996 RO decision does not medically suggest that the Veteran's back and leg pain was incurred in service, it does not raise a reasonable possibility of substantiating the claim. As such, the requests to reopen are denied. Service Connection As noted above, service connection may be granted for a disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. To establish service connection for the claimed disorder, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R § 3.303 (2008); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted for chronic disorders, such as sensorineural hearing loss, when manifested to a compensable degree within one year of separation from service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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 a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Right Ear Hearing Loss and Bilateral Tinnitus Impaired hearing will be considered a disability for VA purposes when the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) are 40 decibels or more; or when the thresholds for at least three of these frequencies 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. The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. The United States Court of Appeals for Veterans Claims (Court) has held that 38 C.F.R. § 3.385 does not prevent a claimant from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Court has also held that the regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current hearing disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. 38 U.S.C.A. §§ 1110 and 1131; C.F.R. §§ 3.303 and 3.304; Hensley, 5 Vet. App. at 159-60. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that the injury or disease existed prior thereto and was not aggravated by service. See 38 U.S.C.A. § 1111 (West 2002). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2009). According to the Veteran's February 1971 entrance examination, hearing loss was noted. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 20 - 30 LEFT 15 10 5 - 55 The results from the Veteran's audiological evaluation at the April 1974 separation examination were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 25 10 40 LEFT 15 15 20 20 85 The Board notes that the Veteran was service connected for his left ear at a noncompensable evaluation in January 2006. The Veteran contends that his right ear was exposed to the same noise levels as his service connected left ear. The Veteran's DD 214 reports the he was a Squadron Telephone Operator Specialist during service. According to the Veteran's post-service treatment records, he was afforded a VA audiological examination in November 2005. The examiner noted the results of the Veteran's audiological examinations at entrance and separation during his service. The Veteran reported "military noise exposure working in communication to headset noise, large Teletype machines, high frequency radios, and generators." He also reported high pitched tinnitus which started since he left service. He stated the tinnitus has increased over the past few years and frequently interferes with his sleep. The results of an authorized audiological evaluation, pure tone thresholds, in decibels, were as follows for the right ear: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 35 50 60 The speech recognition score was 96 percent for the right ear. The examiner reported "normal hearing sensitivity at frequencies at 250 Hz - 1000 Hz, [sloping] to a mild to severe sensorineural hearing loss at 2000 Hz - 8000 Hz." While the examiner opined the Veteran's left ear pre-existing hearing loss was most likely aggravated by acoustic trauma incurred during military service, no opinion was given as to whether the Veteran's right ear hearing loss was incurred or aggravated during service. Furthermore, the examiner opined that since the Veteran's claims file is negative for tinnitus, "[it] is not related to acoustic trauma incurred during military service." In February 2009, the Veteran underwent another VA audiological examination. The results of an authorized audiological evaluation, pure tone thresholds, in decibels, were as follows for the right ear: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 35 55 70 The speech recognition score was 88 percent for the right ear. Upon examination and review of the evidence of record, the examiner opined, "[t]he Veteran's current right ear hearing loss was not permanently aggravated by in-service acoustic trauma... This opinion is based on the service treatment record evidence showing no clinically significant change in a pre-existing high frequency hearing loss in the right ear from the time of military enlistment until separation." The examiner opined that the Veteran's bilateral tinnitus was "less likely as not (less than 50/50 probability) caused by or a result of in-service acoustic trauma... based on the service treatment records which were silent for complaint/diagnosis of tinnitus, the service treatment record documentation of a pre- existing hearing loss, and the conceded history of military trauma." The Veteran submitted a treatment records from a private audiologist, Dr. L. Otwell, who reported in July 2009 that "bilateral mild sloping sharply at 4000 Hz. to a severe high frequency sensorineural hearing loss was recorded. Speech reception thresholds and pure tone averages were in good agreement." Dr. Otwell opined, "[b]ased on the case history and a review of his discharge physical and the [July 2009 examination findings] it appears [the Veteran] has a hearing loss consistent with intense noise exposure" and that the right ear hearing loss and tinnitus is "consistent with and probably caused by noise exposure occurred during his military service." The Board acknowledges that the Veteran contends that he initially experienced hearing loss during service and since separation. The Board also acknowledges his claim that he experienced bilateral tinnitus since leaving service. The Veteran is considered competent to report the observable manifestations of his claimed disability. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that claimant exhibited certain symptoms at particular time following service). Furthermore, the Veteran contends that his right ear hearing loss was caused by military service and was exposed to the same acoustic trauma as his service connected left ear. In addition, he claims his current tinnitus started ever since he left service. Lay persons can provide an account of observable symptoms, such as in this case the Veteran's observation that he has difficulty hearing and when he first noticed having problems with his hearing. See Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). The objective medical evidence includes a VA medical opinions and a letter from a private doctor confirming hearing loss in the right ear and bilateral tinnitus. The Board also notes the increase in severity of right ear hearing loss in his entrance and separation examinations. The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. Here, the Board finds that the medical evidence is at least in relative equipoise on this issue. Resolving such reasonable doubt in the Veteran's favor, the Board finds that the Veteran incurred disabilities due noise exposure during service. 38 U.S.C.A. § 5107. Consequently, based on the Veteran's competent and credible history of hearing loss, the reported chronicity of the symptom, positive and negative medical evidence and opinions, and the current diagnosis of mild to severe sensorineural right ear hearing loss and tinnitus, the Board finds service connection is warranted. In granting these claims, the Board has resolved all doubt in the Veteran's favor. Mononucleosis The Veteran filed a claim for service connection for mononucleosis as a result of diagnosis and treatment during service and alleges residuals, such as liver dysfunction as a result. He has also claims his current diagnosis of psoriasis is related to his mononucleosis. The Board notes the Veteran has withdrawn his appeal of service connection for psoriasis. According to the Veteran's in-service treatment records he was diagnosed with infectious mononucleosis in August 1973. The Veteran was admitted to the hospital and observed for several days. He was discharged and given approximately three weeks of convalescent leave. There is no evidence of complaint or treatment for liver dysfunction and the Veteran's April 1974 separation examination is also absent of any residuals from mononucleosis. The Board has reviewed all the private treatment records and VA examinations in the record. There is no indication the Veteran has been diagnosed with or received treatment for mononucleosis. Private treatment records from August 2008 from Dr. J. Lipke state the Veteran is being treated for psoriasis but there is no indication it is secondary to mononucleosis. The Veteran underwent a VA examination in February 2009. The examiner reported the Veteran "[does] not have recurrence of mononucleosis. Currently, he does not have any swollen lymph nodes. He is afebrile. He does not report any disease activity." There was also no evidence of liver dysfunction or that his current psoriasis is secondary to mononucleosis. The examiner reported "[m]edical literature do not support cause- effect relationship between mononucleosis and psoriasis, mononucleosis and elevated liver function tests. Not caused by or related to remote mononucleosis." Despite the Veteran's claim, he is not competent or qualified, as a layperson, to render a diagnosis or an opinion concerning medical causation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Specifically, where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu, supra. In this case, there is none. Therefore, as there is no competent and probative evidence demonstrating that the Veteran has a diagnosis for mononucleosis, service connection for such disorder is not warranted. Without a disability, there can be no entitlement to compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for mononucleosis. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 38 C.F.R. § 4.14. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Moreover, the Court has since held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. For historical purposes, in March 1975 the Veteran was service connected for injury to the right knee at a noncompensable rating, effective July 16, 1974. In October 1975, the Veteran's service connected right knee disability was granted 20 percent evaluation under Diagnostic Code 5299-5257, effective January 1979 based on medical evidence reflecting crepitus on flexion and extension. The 20 percent evaluation was continued in July 1980 and May 1996. In July 2005, the Veteran applied for an increased evaluation for his right knee disability and the 20 percent evaluation was continued in a January 2006 decision. The Veteran timely appealed. It should be noted that VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred. 38 C.F.R. §§ 3.157, 3.400(o)(2). In this case, as the Veteran filed his claim in July 2005, VA must review the evidence of record from July 2004, to determine if there was an ascertainable increase in the Veteran's right knee disability. In so doing, the Board must also consider all potentially applicable regulations pertaining to rating disabilities of the spine. In evaluating musculoskeletal disorders additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2009). Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45 (2009). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability and to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2009). In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that where evaluation is based on limitation of motion, the question of whether pain and functional loss are additionally disabling must be considered. 38 C.F.R. §§ 4.40, 4.45 (2009). The provisions contemplate inquiry into whether there is crepitation, limitation of motion, weakness, excess fatigability, incoordination, and/or impaired ability to execute skilled movement smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). As noted, the Veteran's right knee disability was assigned a 20 percent disability rating by analogy to 38 C.F.R. § 4.71a, Diagnostic Code 5257. 38 C.F.R. § 4.20 (2009). Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, knee impairment manifested by recurrent subluxation or lateral instability is ratable as 20 percent disabling where there is moderate instability and 30 percent disabling where there is severe instability. Ankylosis of the left knee is neither alleged, nor shown; consequently, 38 C.F.R. § 4.71a, Diagnostic Code 5256 (2009) does not apply. Nor does 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2009) in the absence of service connected tibia and fibula impairment. Title 38, Code of Federal Regulations, Section 4.71a provides that arthritis is rated in accordance with Diagnostic Code 5003, which provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. Under Diagnostic Code 5260, where flexion of the leg is limited to 45 degrees a 10 percent rating is warranted. Flexion of the leg limited to 30 degrees warrants a 20 percent rating is warranted. A limitation of flexion to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, where extension is limited to 10 degrees warrants a 10 percent rating. A limitation of extension to 15 degrees, a 20 percent rating is assignable; and where extension is limited to 20 degrees, a 30 percent rating is assignable. Id. The standard range of motion of the knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71a, Plate II (2008). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2009). Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. Id.; Esteban v. Brown, 6 Vet. App. 259 (1994). In VAOPGCPREC 23-97, 62 Fed. Reg. 63604 (1997), VA's General Counsel determined that, when a claimant has arthritis and instability of the knee, multiple ratings may be assigned under Diagnostic Codes 5003 and 5257. Furthermore, in VAOPGCPREC 9-98, 63 Fed. Reg. 56704 (1998), it was found that, even if the veteran did not have limitation of motion of the knee meeting the criteria for a noncompensable evaluation under Diagnostic Codes 5260 or 5261, a separate evaluation could be assigned if there was evidence of a full range of motion "inhibited by pain." Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). The Veteran contends that he is entitled to a higher rating for his service-connected right knee disability. However, after careful consideration of all the evidence of record, the Board concludes that a higher rating is not warranted at any time during the rating period because the evidence preponderates against finding that his symptoms are severe enough to warrant a higher rating at any time since July 2004. The records include private treatment records from Dr. E. Hazbun, who stated in September 2005 that the Veteran was treated for chronic osteoarthritis of the knees. In November 2005, the Veteran underwent a VA examination where he reported pain and popping in his knee. He does not use a brace or corrective devices. The Veteran stated his knee disability has interfered with his occupation at the post office and prevents recreational activities. A physical examination revealed flexion at 0 to 110 degrees, limited by discomfort, and full extension with "[n]o further discomfort or difficulty with range of motion... Negative anterior and posterior drawer and McMurray's test bilaterally. No mediolateral joint line tenderness, effusions or popliteal masses bilaterally. There is crepitus bilaterally with extension from flexion without discomfort. With repetition of motion right knee flexion increases to 0 [to] 120 degrees." The Veteran was afforded another VA examination in February 2009 where he reported pain depending on physical activity. There were no significant flare-ups but at times felt sharp pain, and no frank instability but may feel unstable when in pain. Physical examination revealed flexion of 0 to 125 degrees, limited by some discomfort, and extension at 0 degrees. There was no "instability or abnormal movement with anterior and posterior drawer test, testing cruciate ligaments. McMurray was negative. No tenderness with palpation, no swelling, edema or erythema have been appreciated." The "[v]algus varus stress testing, medial and lateral collateral ligaments were normal." In addition, there was "[n]o painful motion, tenderness, spasms, edema, fatigability, weakness or instability except as noted. No additional limitation of range of motion after at least three repetitions due to pain, fatigue, lack of endurance or weakness... Additional limitations due to flare-ups cannot be determined without resorting to mere speculation." As discussed above, in order to receive a rating higher than 20 percent for right knee chondromalacia, the evidence must show either severe recurrent subluxation or lateral instability (Diagnostic Code 5257), flexion limited to 15 degrees or less (Diagnostic Code 5260); or extension limited to 20 degrees or more (Diagnostic Code 5261). 38 C.F.R. § 4.71a. The probative and objective evidence of record preponderates against finding severe recurrent subluxation or lateral instability due to the service-connected right knee chondromalacia. In fact, and as will be noted again below, there is no objective evidence of knee instability. That said, the Board notes that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as the Veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Board finds that the Veteran's right knee is more appropriately evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5260, for limited extension. The evidence also fails to show that flexion of the left leg is limited to 15 degrees, such that a rating of 30 percent would be for assignment under Diagnostic Code 5260. Further, limitation of extension to 20 degrees or more is also not shown for the right leg. Thus, a rating in excess of 20 percent is not warranted under either range of motion code. The currently assigned 20 percent rating for the right knee disability adequately compensates any service connected pain, swelling, or other functional loss that the Veteran may experience due to his service connected disorder. The medical evidence of record does not show that the Veteran has any additional service connected limitation of flexion motion, or functional loss, which would entitle him to the next higher rating for her chondromalacia of the right knee. It is also observed that the February 2009 VA examination report also noted the absence of additional limitations on repetitive use and there was no pain with range of motion. Thus, entitlement to a rating higher than 20 percent is denied. The Veteran's statements describing his symptoms are considered to be competent evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). These statements, however, must be viewed in conjunction with the objective medical evidence as required by the rating criteria. In this regard, however, the competent medical evidence discussed above is of far greater probative value. The VA OGC has held that a claimant who has both arthritis and instability of a knee may be granted separate evaluations under DCs 5003 and 5257, respectively, without violating the rule against pyramiding in 38 C.F.R. § 4.14. However, any such separate rating must be based on additional disabling symptomatology. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (July 1, 1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (August 14, 1998). As noted, the objective evidence does not indicate that the Veteran's right knee disability results in lateral instability or recurrent subluxation. The February 2009 VA examination noted no "frank instability" but that his knee may become unstable at the onset of sudden pain. However, on physical examination, the Veteran's right knee tested negative on McMurray testing. And there was no instability or abnormal movement with anterior and posterior drawer test. However, while the Veteran reported instability there is no objective findings of instability. Thus, a separate rating under DC 5257 is not warranted in this instance. Also, as knee extension has not been shown to be limited, a separate evaluation under DC 5261 is not warranted. See VAOPGCPREC 9-04 (which finds that separate ratings under Diagnostic Code 5260 for limitation of flexion of the leg and Diagnostic Code 5261 for limitation of extension of the leg may be assigned for disability of the same joint). Additionally, in an exceptional case, a higher initial evaluation is available on an extraschedular basis. In this case, however, there is no indication of record that the schedular criteria are inadequate to evaluate any of the disabilities at issue in this decision. The Veteran does not allege, and the medical evidence does not establish, that any of these disabilities, alone, causes marked interference with the Veteran's employment, or necessitates frequent periods of hospitalization. In light of the foregoing, the Board finds that the Veteran's claims for higher initial evaluations do not present such exceptional or unusual disability pictures as to apply the extraschedular standards. The Board is therefore not required to remand any of these claims to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) (2008). See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER The request to reopen a claim of service connection for low back and leg pain secondary to service connected arthrotomy, right knee with chondromalacia, is denied. Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for mononucleosis is denied. A rating in excess of 20 percent for residuals, arthrotomy, right knee with chondromalacia is denied. REMAND Diabetes mellitus, type II, claimed as due to herbicide exposure The Veteran claimed his current diagnosis of diabetes mellitus, type II, resulted from exposure to herbicide during service. Specifically, he contends that he was exposed to Agent Orange as a defoliant while stationed at 601 Air Squadron Det #42, 7th Corps Army Headquarters in Stuttgart, Germany. As stated above, the Veteran's primary military specialty was Squadron Telephone Operator Specialist. According to his in- service personnel records, the Veteran was stationed in Moehringen and Sembach Air Base in Germany from October 1971 to August 1973. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In reviewing the record, the Board initially observes that the Veteran did not serve, nor claim he served, in the Republic of Vietnam. However, the Veteran is competent to report his experiences during service. In addition, the Veteran has submitted several internet articles describing the possibility of herbicide usage in other locations other than Vietnam. No action has been undertaken to develop the record as to the Veteran's claimed in-service herbicide exposure. The VA has developed specific procedures to determine whether a veteran was exposed to herbicides in a vicinity other than Vietnam. In such cases, VA's Adjudication Procedure Manual (M21- 1MR) requires that a detailed statement of the veteran's claimed herbicide exposure be sent to the Compensation and Pension (C&P) Service, requesting a review of Department of Defense's inventory of herbicide operations to determine whether herbicides were used or tested as alleged. If the exposure is not verified, a request should then be sent to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification. See M21-1MR, Part IV, Subpart ii, 2.C.10.m (change date September 29, 2006). Pertinent provisions of the VA Adjudication Manual set forth procedures that VA must follow to verify herbicide exposure in locations other than the Republic of Vietnam. Specifically, the M21-1MR provides that the following development should be performed: (a) Ask the Veteran for the approximate dates, location, and nature of the alleged exposure. (b) Furnish the Veteran's description of exposure to Compensation and Pension service via e-mail at VAVBAWAS/CO/211/AgentOrange and request a review of the Department of Defense's inventory of herbicide operations to determine whether herbicides were used as alleged. (c) If Compensation and Pension Service review does not confirm that herbicides were used as alleged, submit a request to The United States Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(l)&(n). The evidentiary development procedures provided in VBA's Adjudication Procedure Manual, M21-1, are binding. See Patton v. West, 12 Vet. App. 272, 282 (1999) (holding that the Board failed to comply with the duty to assist requirement when it failed to remand the case for compliance with the evidentiary development called for by the M21-1). Based on the foregoing, the Board finds that prior to any further adjudication of the claims, the Veteran's allegations of Agent Orange exposure in Germany should be investigated and developed as prescribed in M21- 1MR. Initial compensable evaluation for left ear hearing loss The Board is granting service connection for right ear hearing loss. In light of the impact such award has on the Veteran's claim for a higher initial rating for left ear hearing loss, the Board finds that a remand is necessary to allow the AOJ to readjudicate this issue as entitlement to an initial compensable rating for bilateral hearing loss. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall comply with the evidentiary development noted in M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(l)&(n); including specifically asking the Veteran to describe in detail his herbicide exposure in Germany; asking him to describe his role while in Germany. The Veteran should also be informed that he could provide additional proof of exposure, in the form of "buddy" statements, photographs taken during service, or letters written during service. The RO/AMC shall then furnish the Veteran's description of exposure to Compensation and Pension service via e- mail at VAVBAWAS/CO/211/AgentOrange and request a review of the Department of Defense's inventory of herbicide operations to determine whether herbicides were used as alleged. If Compensation and Pension Service review does not confirm that herbicides were used as alleged, submit a request to the JSRRC for verification of exposure to herbicides. 2. The AMC should ask the Veteran to identify any additional personal records in his possession, date(s) of treatment, the name(s) of the examining medical practitioner, and location(s) of treatment facility used since service, and any other pertinent information in locating such reports. The AMC should obtain complete records of all such consultation and evaluation from all sources identified by the Veteran. 3. Conduct any further development necessary based on any newly received evidence. 4. After completion of the action requested above, if it has been verified that the Veteran has been exposed to herbicide, then schedule the Veteran for a VA examination for compensation purposes in order to determine the nature and etiology of the Veteran's diabetes mellitus, type II. Send the claims folder to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should advance an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent); at least as likely as not (i.e., probability of 50 percent); or less likely than not (i.e., probability less than 50 percent) that the Veteran's chronic diabetes mellitus had its onset during active service; is etiology related to the Veteran's claimed in-service herbicide exposure; and otherwise originated during active service. Send the claims folder to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. A complete rationale must be provided for all opinions advanced. 5. Following implementation of the grant of service connection for right ear hearing loss, adjudicate the issue of entitlement to an initial compensable rating for bilateral hearing loss and issue a Supplemental Statement of the Case as to this issue. 6. After completion of the above, and any other development deemed necessary, review the expanded record and determine if the Veteran has submitted evidence sufficient to warrant entitlement to the benefit sought. Unless the benefit sought on appeal is granted, the Veteran and his representative, if any, should be furnished an appropriate Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. 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. 2009). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs