Citation Nr: 1304247 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 10-33 666 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a bilateral ankle disability. 3. Whether there was clear and unmistakable error (CUE) in a November 1990 rating decision that failed to grant service connection for tinnitus. REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from June 1985 to June 1990, and January 1991 to April 1991. This matter comes to the Board of Veterans' Appeals (Board) from May 2008 and January 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The May 2008 rating decision declined to reopen the previously denied claims of entitlement to service connection for right knee and bilateral ankle disabilities. The January 2010 rating decision declined to find CUE to the November 1990 decision denying service connection for tinnitus. The Veteran's claims were remanded in August 2011 for additional development-including VA examinations and addressing the CUE issue on the merits. The requested action was taken and the case has since been returned to the Board for adjudication. In addition to a paper claims file, the Board has reviewed the Veteran's electronic claims file, known as Virtual VA, prior to rendering this decision. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a right knee disability that is etiologically related to a disease, injury, or event in service, to include his service-connected back disability. 2. The preponderance of the evidence is against finding that the Veteran has a bilateral ankle disability that is etiologically related to a disease, injury, or event in service, to include his service-connected back disability. 3. The RO's November 1990 rating decision implicitly denying service connection for tinnitus was consistent with the evidence of record and in accordance with governing law and regulations. CONCLUSIONS OF LAW 1. The Veteran's right knee disability is not due to or the result of any service-connected condition or any other incident of service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). 2. The Veteran's bilateral ankle disability is not due to or the result of any service-connected condition or any other incident of service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). 3. There was no CUE in the November 1990 rating decision that implicitly denied service connection for tinnitus, and that decision remains final. 38 U.S.C.A. §§ 5109A, 7105 (West 2002); 38 C.F.R. § 3.105 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, the VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran 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 Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in September 2007 and October 2007 fully satisfied the duty to notify provisions with respect to the issues of entitlement to service connection for bilateral ankle and right knee disabilities, including secondary service connection. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As to the claim of CUE, the Board notes that an allegation of CUE does not actually represent a "claim" but rather is a collateral attack on a final decision which is determined on the basis of the evidence of record at the time the decision in question was rendered. Hence, the VCAA is not applicable to this appeal. See Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc) (an attempt to obtain benefits based on an allegation of clear and unmistakable error "is fundamentally different from any other kind of action in the VA adjudicative process."); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit). Therefore, further discussion of the VCAA is not warranted with respect to this claim. Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced state service organization and has submitted argument in support of his claims. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis, 6 Vet. App. at 430 (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs) and VA medical records are in the file. Records from the Social Security Administration (SSA) also have been associated with the claims file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt was relevant to the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). In this case, the Veteran was provided VA examinations in September 2011. The examiner considered the Veteran's complaints, as well as the service treatment records, post-service treatment records, and conducting a physical examination. Based on the foregoing, the examiner concluded that the Veteran's bilateral ankle and right knee disabilities were not due to or aggravated by an event, disease, or injury incurred during active service, or a service-connected disability. Therefore, as the opinions were based on review of the claims file, including the Veteran's statements, and provided an extensive rationale for the opinion provided, the Board concludes that the opinions provided are adequate. Given the foregoing, the Board finds the evidence of record to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); see also Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007) (finding that an adequate opinion is one that is based upon consideration of the Veteran's prior medical history and examinations, describes the disability in sufficient detail, and includes a conclusion supported by an analysis that the Board can consider and weigh against contrary opinions). As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claim. Given the September 2011 VA examination and report and the subsequent readjudication of the claims, the Board finds that there has been substantial compliance with its August 2011 remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). When a chronic disease, to include arthritis, becomes manifest to a degree of 10 percent within one year of the Veteran's discharge from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the Veteran's period of service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In this case, the Veteran was not diagnosed with arthritis of the right knee and bilateral ankles for many years following service. As such, service connection on a presumptive basis is not warranted. See id. To establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established for any disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310 (2012). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; see also Allen v. Brown , 7 Vet. App. 439 (1995) (en banc). CUE An unappealed rating decision is final based on the evidence of record (and may not be revised based on the record (unless it is shown that the decision involved CUE). 38 U.S.C.A. § 7105. Where CUE is found in a prior RO decision, the prior decision will be reversed or revised. For the purposes of authorizing benefits, reversal or revision of the prior decision on the grounds of CUE has the same effect as if the correct decision had been made on the date of the prior decision. 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). There is a three-pronged test for CUE: (1) either the correct facts, as they were known at the time, were not before the adjudicator, or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be "undebatable" and of the sort "which, if it had not been made, would have manifestly changed the outcome at the time it was made;" (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). In this regard, the Board emphasizes that a 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, with 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). It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). Determination of CUE must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994); Damrel, 6 Vet. App. 242; Fugo, 6 Vet. App. 40 (1993); Russell, 3 Vet. App. 310. A claim of CUE is a collateral attack on an otherwise final rating decision by a VA regional office. Smith v. Brown, 35 F. 3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked the presumption becomes even stronger. Fugo, 6 Vet. App. at 44. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). A disagreement with how facts were evaluated is inadequate to raise the claim of CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). A failure in the duty to assist does not establish CUE. See Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). In Cook, the Federal Circuit emphasized that a purported failure in the duty to assist cannot give rise to clear and unmistakable error, nor does it result in "grave procedural error" so as to vitiate the finality of a prior, final decision. In other words, to present a valid claim of CUE, the claimant cannot simply request that the Board reweigh or reevaluate the evidence. Crippen v. Brown, 9 Vet. App. 412 (1996). Further, an alleged failure in the duty to assist by the RO may never form the basis of a valid claim of CUE, because it essentially is based upon evidence that was not of record at the time of the earlier rating decision. See Elkins v. Brown, 8 Vet. App. 391, 396 (1995). The fact that medical knowledge was not advanced to its current state may not form the basis for a valid claim of CUE, because it is premised upon facts that were not then of record. Subsequently developed evidence may not be considered in determining whether error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). Again, the mere misinterpretation of facts does not constitute CUE. Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). Factual Background and Analysis Service Connection The Veteran essentially contends that he has right knee and bilateral ankle disabilities that were caused by his active service or secondary to his service-connected back disability. The Veteran was treated in service of complaints related to the right knee and bilateral ankles. In November 1985, the Veteran was treated for a left ankle sprain. In May 1989 the Veteran sought treatment for complaints of right knee pain. The examiner noted rule-out medial collateral and lateral collateral full tear, and degenerative joint disease. Upon further examination, he was diagnosed as having overuse syndrome in the right knee. The report of physical examination from his first period of active duty did not show any residuals right knee or bilateral ankle problems other than a notation of calcium deposits in the right knee consistent with Osgood-Schlatter's disease. Immediately following service, the Veteran filed for service connection for problems with both knees and ankles. He was afforded a VA examination in August 1990, during which he reported that in 1985 (during boot camp) his ankles would twist and swell while running in sand. He did not report any problems with his right knee, and no physical examination was performed on it. Physical examination of the bilateral ankles was within normal limits, and the examiner diagnosed the Veteran as having a history of ankle strains. In September 2007, the Veteran reported to VA treating personnel that he experiences weakness in the legs and ankles. Otherwise, his VAMC treatment has been generally silent as to complaints of bilateral ankle and right knee problems. It appears that the Veteran was first diagnosed as having degenerative joint disease of the right knee and bilateral ankles in the mid- to late-2000s. The Veteran was afforded a VA examination of the ankles in April 2008, at which time he reported that he is prone to ankle sprains and has had problems with them since the military. He also reported experiencing diffuse right knee pain that has been present for 20 years. The examiner diagnosed the Veteran as having right knee degenerative joint disease, and degenerative joint disease of the bilateral ankles. Following physical examination and review of claims file, the examiner opined that the Veteran's service-connected disabilities did not cause his bilateral ankle and right knee disabilities, nor have his bilateral ankle and right knee disabilities been aggravated by his service-connected disabilities. The April 2008 examiner did not, however, provide much rationale, nor did he provide an opinion as to direct service connection. As such, the Board remanded the Veteran's claims for a new VA examination in August 2011. The Veteran was afforded a VA examination of the ankles in September 2011, at which time he related the history of ankle sprains while in service. The examiner noted that the Veteran was shown to have an in-service history of treatment for ankle swelling with long runs/forced marches. The examiner further noted that the 1990 VA examination revealed a normal ankle examination. Current x-rays of the bilateral ankles shows degenerative joint disease of the ankles. After physical examination and extensive review of the Veteran's claims file, the examiner opined that the Veteran's bilateral ankle disability was less likely than not directly caused by or permanently aggravated by his time in the military. In so opining, the examiner indicated that the Veteran made no mention of any chronic bilateral ankle problems in the many years since service even though he has been treated for other musculoskeletal complaints. Also, the August 1990 VA ankle examination was within normal limits. As such, the examiner opined that his bilateral ankle degenerative joint disease is more likely than not related to aging. The examiner also opined that the Veteran's bilateral ankle degenerative joint disease is unrelated to his service-connected low back disability. He indicated that it is unlikely that the Veteran's back disability caused or permanently aggravated the bilateral ankle disabilities. He based his opinion on the majority of medical literature and his own experiences as a spine specialist in finding that there is no connection between the Veteran's bilateral ankle disabilities and his low back disability. In September 2011, the Veteran was also afforded a VA examination of his right knee. The examiner noted that the Veteran was treated once in service for right knee overuse, but had no chronic right knee disability during service. The Veteran was diagnosed as having degenerative joint disease of the right knee. Following review of the claims file and after physical examination of the Veteran, the examiner opined that the Veteran's right knee disability was less likely than not directly related to the one instance of treatment during active duty. The examiner's rationale included that the August 1990 VA examination did not reveal any right knee disability, nor did the Veteran report any right knee problems. The examiner further indicated that the Veteran did not mention any ongoing right knee problems over the next 10 years and he has had no specific treatment for right knee problems. As such, it was the examiner's opinion that the right knee degenerative joint disease was more likely the result of aging. The examiner further opined that the Veteran's service-connected back disability did not cause or permanently aggravate his right knee disability. In reaching this conclusion, the examiner noted that the majority of medical literature, and as reflected in his medical expertise as a spine specialist, does not support a finding of a connection between the Veteran's back disability and his right knee. It is clear from the record that the Veteran has current right knee and bilateral ankle disabilities. As noted above, the Veteran contends that these disabilities were either proximately caused or aggravated by his service-connected back disability or directly related to his military service. Based on the evidence of record, the Board concludes they were not. The Board finds that the opinions expressed in the September 2011 VA examination reports to be credible and probative. The reports were based on interviews with the Veteran, his reported medical history, appropriate diagnostic testing, and physical examination. Further, a complete and thorough rationale is provided for the September 2011 opinions from the VA examiner. Although the Veteran was shown to have limited treatment for complaints related to the ankles and right knee during service, he was not shown to have any chronic disabilities of the right knee and bilateral ankles at separation or soon after separation. In fact, the first post-service VA examination found no right knee or bilateral ankle disabilities, and physical examination was within normal limits. Further, the examiner noted that the Veteran was treated for musculoskeletal problems multiple times following service separation, but he was not treated for any significant complaints related to the right knee and bilateral ankles, nor did he report problems with the same. As such, the physician concluded that the effects of aging caused his right knee and bilateral ankle degenerative joint disease. These opinions are fully explained and consistent with the evidence of record. In that regard, the Board observes that no medical professional has opined as to a relationship between the Veteran's current degenerative joint disease of the right knee and bilateral ankles and his service-connected low back disability. The medical professional's opinions clearly contemplated both causation and aggravation. Furthermore, the Board has considered the Veteran's contentions that his current right knee and bilateral ankle disabilities were caused by his service-connected low back disability. In this regard, the Board acknowledges that the Veteran is competent to give evidence about what he experienced; for example, he is competent to discuss the existence of right knee or bilateral ankle pain. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, in most cases, the Veteran is not competent to render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training-despite this Veteran's in-service history of being dental tech. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). In this instance, therefore, the Veteran as a lay person has not been shown to be capable of making medical conclusions, especially as to complex medical diagnoses such as a link between his current right knee and low back disabilities and his back disability. As such, the Board ascribes far more weight to the conclusions of the multiple medical professionals who concluded that the Veteran's current right knee and bilateral ankle disabilities were not caused or aggravated by his back disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In short, the most probative medical evidence specifically rules out a relationship between the Veteran's current right knee and bilateral ankle disabilities and his low back disability. The Board places more weight on the opinion of the competent VA medical professional who provided the September 2011 opinions, based on review of the medical records and claims file and/or interview of the Veteran and/or physical examination, than on the Veteran's lay assertions that his current right knee and bilateral ankle disabilities are related to his low back disability. As such, no finding of service connection is warranted on a secondary basis. The Board also has considered whether a grant of service connection for right knee and bilateral ankle disabilities is warranted on a direct basis. For the reasons discussed below, the Board concludes that service connection on a direct basis also is not warranted. The Board has considered the Veteran's contentions that he experienced ongoing right knee and bilateral ankle problems since treatment for those complaints in service. The Board, however, has "the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In this case, the "inherent characteristics" of the Veteran's current statements as to a continuity of right knee and bilateral ankle problems from service are inconsistent with the objective medical record and his own more contemporaneous statements. In that regard, the Veteran was not shown to have any chronic right knee or bilateral ankle disabilities at service discharge, nor did the Veteran's complain of any current right knee or bilateral ankle problems during the August 1990 VA examination. Of even greater significance, the Veteran was seen numerous times following service for musculoskeletal complaints and he did not bring up his right knee or bilateral ankle problems, nor did he discuss the in-service treatment for right knee and ankle problems. And as noted above, his first diagnosis of degenerative joint disease of the right knee and bilateral ankles appears to have occurred during his April 2008 VA examination. As such, the Board finds that had the Veteran been experiencing ongoing right knee and bilateral ankle problems since service, it would have been reasonable for him to make such an assertion to his treating professionals between service separation and the present. The Board finds that all these factors weigh heavily against finding that the Veteran's current assertions of continuity of symptomatology since service to be credible. The Board also has considered the case of Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), wherein the Court held that the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. However, this is not a case in which the record is merely silent regarding whether or not he experienced injury or complaints in service. Rather, this is a case in which the record shows no right knee or bilateral ankle disabilities or complaints of right knee or ankle problems at separation from service, and a normal examination of the right knee and ankles in August 1990. Additionally, he did not describe any bilateral ankle or right knee problems to treating personnel during the times he was treated for his other musculoskeletal complaints. The Veteran had every opportunity to discuss these complaints to treating personnel, but did not do so. Thus, there is affirmative evidence, rather than merely a lack of contemporaneous evidence. In short, the Board gives greater credence and weight to the contemporaneous and near contemporaneous medical records and the Veteran's statements when seeking such treatment and than his recent assertions of continuity of symptomatology, which were first made only after filing his claim for service connection. Therefore, the Board finds that the Veteran's allegations of a continuity of symptomatology are not credible. In summary, the preponderance of the evidence demonstrates that the Veteran's degenerative joint disease of the right knee and bilateral ankles was not caused or aggravated by his military service or service-connected low back disability. In that regard, the Board finds the conclusions of the September 2011 VA opinion provider of significantly more probative value than those of the Veteran based on his non-credible claims of continuity of right knee and bilateral ankle symptomatology from service. As such, the Board finds that the benefit of the doubt doctrine is not for application, and that the claim must be denied. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). CUE The Veteran contends that there was CUE in the November 1990 rating decision, which implicitly denied service connection for tinnitus. Recently, the Veteran contended that his July 1990 claim for service connection for a "hearing condition" should have included a claim of tinnitus, and because the RO only denied service connection for bilateral hearing loss in its November 1990, his tinnitus claim was never adjudicated. Therefore, he asserts that the effective date for his grant of service connection for tinnitus should be at the time he filed his claim in 1990. In support of his contentions, the Veteran cites the Board's May 2009 decision in which it finds that the July 1990 claim included a claim for tinnitus. It is the Veteran's contention that his tinnitus claim was open and pending since that time. The Board notes that the issue of entitlement to an earlier effective date for the grant of service connection for tinnitus was denied in a May 2009 Board decision, and this issue is not before the Board. The issue before the Board is whether there is CUE in the November 1990 rating decision. By way of background, the Veteran filed his claim of service connection for a "hearing condition" in July 1990. A November 1990 rating decision denied service connection for hearing loss. The Veteran filed a notice of disagreement to the denial of service connection for hearing loss, but did not perfect an appeal. The Veteran again filed for service connection for tinnitus in October 2007, and requested that his date of claim be considered August 1990, and he later argues that the effective date should be in July 1990. Service connection for tinnitus was awarded in a May 2008 rating decision, and a 10 percent rating was assigned, effective October 29, 2007. At that time, an earlier effective date was denied. Again, the Veteran appealed this denial and in a May 2009 Board decision, an earlier effective date for the grant of service connection for tinnitus was denied. The Board specifically found that the Veteran's claim of tinnitus was not open and pending since July 1990. The Board found that either the mere failure to expressly consider the tinnitus claim is sufficient to imply the denial, or alternatively, the adjudication of such a closely associated disability serves to provide reasonable notice to the Veteran of the denial of a claim for benefits due to tinnitus. See Deshotel v. Nicholson, 457 F.3d 1258, 1262 (Fed. Cir. 2006), Ingram v. Nicholson, 21 Vet. App. 232, 243 (2007). Thus, the Board must consider whether the record and the law at the time of the November 1990 adjudication revealed an "undebatable" error, which if it had not been made, would have manifestly changed the outcome at the time it was made. VA law applicable at the time of the November 1990, rating decision included: Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran's STRs do not show treatment for or complaints related to any tinnitus. Following his first period of service in July 1990, the Veteran applied for service connection for a "hearing condition." In August 1990, the Veteran was afforded a VA examination, at which time he reported occasional high-pitched, bilateral tinnitus. Following the physical examination, the examiner indicated that the Veteran had normal auditory acuity bilaterally, but there was no clinical diagnosis of tinnitus. There was no evidence, whether lay or medical, showing a link between any complaints of tinnitus and the Veteran's military service. In November 1990, the RO denied service connection for hearing loss finding that no current hearing loss disability existed as related to his military service, and as determined in the Board's May 2009 decision, this denial included his claim for entitlement to service connection for tinnitus. Those findings are entirely consistent with the evidence of record. The Board stresses that the issue under consideration is not whether the Board agrees or disagrees with the RO's decision to deny service connection for the Veteran's hearing condition-including tinnitus. The Board cannot reevaluate each piece of evidence of record in November 1990 to determine how probative it is in pursuit of reaching its own conclusion as to whether service connection for tinnitus was warranted. Such an inquiry requires weighing and evaluating evidence to a degree which, as stated above, cannot constitute a valid claim of CUE. In light of the above discussion, the Board has determined that there is no evidence that the RO applied the law or regulation in an erroneous manner, or that there was relevant evidence not considered. In sum, there was no CUE in the November 1990 rating decision in failing grant service connection for tinnitus. Accordingly, the appeal is denied. ORDER Service connection for a right knee disability is denied. Service connection for a bilateral ankle disability is denied. The appeal to establish CUE in a November 1990 rating decision implicitly denying service connection for tinnitus injury is denied. ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs