Citation Nr: 1327748 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 06-20 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for arthritis. 4. Entitlement to service connection for bilateral hearing loss. 5. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Maryland Department of Veterans Affairs ATTORNEY FOR THE BOARD Rutkin, Joshua M. INTRODUCTION The Veteran served on active duty from April 1965 to April 1967. This appeal before the Board of Veterans' Appeals (Board) is from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The Board remanded these claims in June 2008, April 2010, and January 2012 for further development. That development has been completed, as discussed below, and the claims now return for appellate review. FINDINGS OF FACT 1. The Veteran's currently diagnosed degenerative disc disease and stenosis of the lumbar spine did not manifest in active service or within one year of discharge, and is not related to a disease, injury, or event during active service. 2. There are no diagnoses of left knee pathology of record, and current left knee symptoms did not manifest in active service and are not related to a disease, injury, or event during active service. 3. The Veteran's arthritis did not manifest in active military service or within one year of discharge, and is not related to a disease, injury, or event during active service. 4. The Veteran's bilateral hearing loss disability did not manifest during active service or within one year of discharge, and is not related to a disease, injury, or event during active service. 5. The Veteran's tinnitus did not manifest in active service, and is not related to a disease, injury, or event during active service. CONCLUSIONS OF LAW 1. Service connection for a lumbar spine disorder has not been established. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). 2. Service connection for a left knee disorder has not been established. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 3. Service connection for arthritis has not been established. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). 4. Service connection for bilateral hearing loss has not been established. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 5. Service connection for tinnitus has not been established. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence of record, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. 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 claimant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The standard of proof to be applied in decisions on claims for veterans' benefits is the benefit-of-the-doubt rule set forth in 38 U.S.C.A. § 5107 (West 2002). Under this standard, a claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The preponderance of the evidence must weigh against a claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), sets forth VA's duties to notify and assist claimants in substantiating claims for VA benefits. See 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 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); 38 C.F.R. § 3.159(b). In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). All notice under the VCAA should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, a delay in timing of the notice is "cured," and therefore harmless, when a fully compliant VCAA notification letter is followed by readjudication of the claim (such as through issuing a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC)) after the claimant has had an opportunity to submit additional evidence. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). For service connection claims, proper notice of what is necessary to substantiate the claim requires that the Veteran be informed of the following five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); Quartuccio, 16 Vet. App. at 187. Here, letters dated in June 2003, March 2006, and November 2008 satisfied the above notice requirements, and also informed the Veteran of his and VA's respective responsibilities for obtaining relevant records and other evidence in support of his claims. Each letter was followed either by initial adjudication of his claims or by readjudication in an SOC or SSOC after an appropriate time to respond with additional information and evidence. Therefore, the duty to notify is satisfied. See id.; see also Mayfield, 499 F.3d at 1323. VA's duty to assist under the VCAA includes helping the claimant to obtain service treatment records and other pertinent records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Here, the Veteran's service treatment records and VA medical records are in the claims file. Private treatment records submitted by the Veteran are also in the file. VA made several requests for other private treatment records identified by the Veteran but was unsuccessful in obtaining them, either receiving a negative response or no response after a second request. See 38 C.F.R. § 3.159(c). Letters to the Veteran notified him of VA's efforts to obtain these records and informed him that he could submit the records himself. The Veteran was also notified of VA's unsuccessful attempts to obtain them in the April 2006 SOC. Thus, further efforts to obtain these records are unwarranted. See id. The Appeals Management Center (AMC) also made several efforts to obtain VA treatment records dating from January 1985 to June 2002 from the Washington, DC VA Medical Center (VAMC), which would also include records from the Greenbelt community-based outpatient clinic (CBOC) -a subsidiary facility of this VAMC where the Veteran has been treated. However, such records could not be located. The Veteran was informed of VA's inability to obtain these records, and responded in a March 2013 statement (documented in a VA Report of General Information Form) that he had not been treated at the Washington DC VAMC prior to June 2002. The AMC issued a memorandum for the file making a formal finding of unavailability of these records in March 2013. In a June 2013 informal hearing presentation (IHP), the Veteran, through his representative, agreed that further efforts to obtain these records would be futile, and requested that a final decision be made based on the evidence of record. The Veteran has not identified any other records or evidence that remains outstanding. Thus, the duty to obtain relevant records on the Veteran's behalf is satisfied. See 38 C.F.R. § 3.159(c). 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. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate, and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). Id. With regard to the Veteran's lumbar spine disorder claim, a VA spine examination was performed in January 2009. The examination report is adequate for deciding this claim. Specifically, the examiner reviewed the claims file and medical history, examined the Veteran, and provided a medical opinion which is consistent with the evidence of record. See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion") (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's decision will be a fully informed one). There is some ambiguity in the VA examiner's opinion, as she stated that although the Veteran's lumbar spine disability was not related to an incident of his military service, his chronic back strain in 1966 and ongoing complaints of back pain since that time were earlier manifestations of his currently demonstrated back pathology. However, clarification of this opinion or further opinion is not warranted. The evidence shows that the Veteran sustained several post-service injuries to the low back requiring four hospitalizations in the 1970's, and his private treating physician wrote in an October 2005 statement that the Veteran had been his patient since 1989 but did not report back problems until 1991. Moreover, his current diagnoses of disc disease and stenosis of the lumbar spine do not match the diagnosis of mild straightening of the lordosis diagnosed decades earlier in a September 1967 x-ray report. Thus, because there is sufficient evidence to decide this claim, further examination or opinion is not required. See McLendon, 20 Vet. App. at 83. In an October 2011 IHP, the Veteran, through his representative, called into question the qualifications of the examiner, stating that she did not appear to be licensed by Washington DC as a nurse practitioner. Whether or not this may be the case, the representative did not state that she was not appropriately licensed, but merely suggested that he was unable to find that she was licensed in DC. As the VA examiner is a nurse practitioner employed by VA, and as the Veteran's representative has provided no specific argument or explanation as to why he believed she lacked the appropriate expertise to examine the Veteran and render a medical opinion, the Board may assume her competency. See Sickels, 643 F.3d at 1365-66; Rizzo, 580 F.3d at 1290-1291. Accordingly, VA's duty to obtain a VA examination and opinion has been met with regard to the lumbar spine disorder claim. See 38 C.F.R. §§ 3.159(c)(4); 3.326(a); McLendon, 20 Vet. App. at 83; Barr, 21 Vet. App. at 312. VA examinations or opinions were not provided with regard to the other service connection claims on appeal. In McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006), the Court held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. Here, as explained below, the credible evidence does not show that the Veteran's current arthritis, left knee pain, hearing loss, or tinnitus manifested in service or until decades after his discharge. There is also no competent evidence that an in-service disease, injury, or event caused the later onset of these disorders. Accordingly, there is no indication that these disorders may be related to service, and therefore a VA examination or opinion is not required to decide these claims. See id. In sum, VA's duties to notify and assist under the VCAA have been satisfied. The Veteran has had ample opportunity to participate in the development of his claims. See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that any error depriving a claimant of "a meaningful opportunity to participate effectively in the processing of his or her claim . . . . must be considered prejudicial")). As shown above, any defect in the notice or assistance provided did not affect the outcome of this claim or compromise the "essential fairness of the adjudication." See Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, any error in the notice or assistance provided was harmless, and no prejudice exists. See Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009) (holding that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless, and that it is the burden of the claimant to show that the error was harmful by at least providing an explanation as to how the error caused harm); see also 38 U.S.C.A. § 7261(b)(2) (West 2002). Accordingly, the Board may proceed with appellate review. II. Procedural Due Process The Board remanded these claims in June 2008, April 2010, and January 2012 to obtain outstanding VA treatment records dating from 1985 to 2002 from the Washington DC VAMC, to send the Veteran a letter requesting him to identify any additional pertinent records or evidence, and to afford him a VA examination with regard to his lumbar spine disorder claim. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the Court held that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand. See D'Aries, 22 Vet. App. at 105 (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall. As shown in the above discussion regarding VA's duties under the VCAA, the above development has been completed. An April 2010 letter also satisfied the directive to request the Veteran to identify any additional pertinent evidence. Thus, the Board's remand directives have been satisfied. See id. III. Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Federal Circuit has distinguished two evidentiary requirements for establishing service connection depending on the type of disorder being claimed. For any disorder not defined by VA as a "chronic disease," the Federal Circuit held that a three-element test must be satisfied under subsection 3.303(a) of the regulations in order to establish entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1333 (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Id. However, claims for chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary requirement under subsection 3.303(b). See Walker, 708 F.3d at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases"). Specifically, when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain in a claim for arthritis or abnormal heart action in a claim for heart disease) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. The Federal Circuit noted that the requirement of showing a continuity of symptomatology after service under subsection 3.303(b) is a distinct and lesser evidentiary burden than the nexus element of the three-part test discussed above: "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added). Walker, 708 F.3d at 1338-1339. Thus, showing a continuity of symptomatology after service is an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation" for chronic diseases. Id. at 1338; see also id. at 1336 (observing that section 3.303(b) provides a "second route by which a veteran can establish service connection for a chronic disease"). A continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. at 1338. In other words, while a current disability must always be established in any service connection claim, the evidence required to show that the disability was incurred in or aggravated by active service differs according to whether the disability is defined as a chronic disease. If the disability in question is not defined as a chronic disease, then a "medical nexus" between active service and the claimed disability must be established under the three-part test set forth in Shedden discussed above. If the claimed disability is considered a chronic disease, then a relationship to service may be established by a chronicity in service or a continuity of symptoms after service, which is a less demanding evidentiary showing. See id. Not all diseases that may be considered "chronic" from a medical standpoint qualify for the more relaxed evidentiary requirements under section 3.303(b). Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Id. Thus, if the claimed disability is not one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology requirement does not apply, and "the 'nexus' requirement of the three-element test" must be satisfied in order to establish entitlement to service connection benefits. Id. 1. Lumbar Spine Disorder The Veteran claims entitlement to service connection for a lumbar spine disorder. For the following reasons, the Board finds that service connection is not warranted. Because the Veteran has been diagnosed with degenerative disc disease of the lumbar spine, and this condition is defined as a chronic disease in section 3.309(a), the provisions of subsection 3.303(b) for chronic disabilities apply, and the claim may be established by evidence of a continuity of symptomatology after service. See Walker, 708 F.3d at 1338-1339. Moreover, the Veteran's degenerative disc disease of the lumbar spine is also eligible for presumptive service connection. Specifically, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for osteoarthritis may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a). However, this presumption will be rebutted if there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). The Veteran argues that his degenerative disc disease and stenosis of the lumbar spine was caused or aggravated by an in-service injury. Specifically, at the January 2009 VA examination, he stated that he was carrying a heavy tent during live fire training and fell backward into a crater, with the tent falling on top of him. The next day he sought treatment at the clinic on base and was told to "take it easy." He was given pain relievers and his back was taped. He went to "sick call" several times thereafter over the next month. According to the Veteran, he has continued to experience back pain intermittently since his in-service injury to the time of the present claim. The Veteran testified at a January 1968 hearing that he wanted to report his back problems at separation, but was told that he would be required to remain in service an additional 90 days to evaluate his back if he endorsed back problems. Therefore, he denied a history of back problems in the February 1967 Report of Medical History. This report shows that he initially checked the "yes" box next to "recurrent back pain," but then crossed that out, initialed it, and checked the "no" box instead. The Veteran further stated at the January 2009 VA examination that he dropped his earlier claim for a back disorder, which was submitted in August 1967, because he wished to work in construction and was told by his apprenticeship mentor that such a claim would jeopardize his job prospects. He subsequently worked for a city fire department from 1970 to 1981, and then retired from that job due to a "bad back." He stated that he had been hospitalized four times during the 1970's for his back condition, and placed in traction for two weeks. A slip-and-fall injury while working for the fire department, heavy lifting, and helping a woman trapped in a car that had been crushed by a tree were reasons he provided for his hospitalizations. He stated that a myelogram in 1978 showed a ruptured disc at L4-5. The service treatment records dating from his 1965 entrance to his 1967 separation from service do not reflect diagnoses, treatment, or any mention of back problems. His spine was clinically evaluated as normal in the February 1967 separation examination report. As noted above, in the February 1967 Report of Medical History, the Veteran appears to have initially endorsed a history of recurrent back pain, and then denied it. In August 1967, about four months after his April 1967 separation from service, the Veteran submitted a service connection claim for a back condition. At a September 1967 VA examination, the Veteran provided a history of his in-service injury substantially similar to the one he provided at the January 2009 VA examination, and stated that he went to "sick call" repeatedly for his back and each time was given aspirins and physiotherapy. He reported an almost continuous dull ache in his low back area which became severe after doing heavy work in a construction job. The examiner diagnosed a chronic lumbosacral strain with a rule-out diagnosis of discogenic disease. However, a September 1967 VA x-ray study only showed minimal straightening of the lordotic curve with no evidence of intrinsic bone or joint disease. The intervertebral spaces were also within normal limits. In a September 1967 letter, the Veteran's parents wrote that the Veteran had ongoing back pain since active service, and that he did not have a history of back pain or back injuries prior to service. At a January 1968 hearing, the Veteran reported that in his civilian construction job he had to lift as much as 100-pound sacks or 50-pound bags, and carry heavy scaffolding. Whenever he had to do such heavy lifting, his back would hurt him that evening or the next morning, according to his testimony. Private treatment records dating from 1999 to 2001 show that the Veteran was treated for low back pain. VA treatment records dating from 2002 to 2012 show diagnoses of degenerative disc disease of the lumbar spine. A November 2002 VA MRI report, for example, showed severe degenerative osteoarthritis changes at L4-L5 and L5-S1 with marked narrowing of the disc space and corresponding foramina, as well as at levels L1-L2 and L2-L3. In an October 2005 statement, a private treatment physician, Dr. J. Magday, wrote that the Veteran became his patient in 1989 but did not report back problems until 1991, and stated that they work work-related. In the January 2009 VA examination report, the examiner diagnosed the Veteran with degenerative disc disease of the lumbosacral spine with lumbosacral polyradiculopathies. The examiner opined that the Veteran's lumbar spine disorder was not related to any incident of active service, including his reported in-service injury, but rather that the degenerative process would have occurred irrespective of the in-service injury. The examiner also stated that the Veteran's chronic back strain diagnosed in 1966 and ongoing complaints of back pain were earlier manifestations of his current back pathology. Based on the above evidence, the Board finds it credible that the Veteran sustained an acute injury to his low back during active service. The Veteran is competent to describe his in-service injury and to state that he sought treatment several times for back pain during service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge). The service treatment records are notably sparse, and it is plausible that his complaints of back pain were not recorded. His explanation at the January 1968 hearing for not reporting low back pain at separation also seems plausible, and is supported by the fact that he apparently endorsed a history of recurrent back problems in the February 1967 Report of Medical History, and then crossed his "yes" answer out and instead checked the "no" box. Further supporting this history is the fact that he submitted a claim for a back condition only four months after separation. Nevertheless, the preponderance of the evidence shows that the Veteran's current lumbar spine disorders were caused by a number of post-service injuries which resulted in four hospitalizations, including two weeks of traction. Doctor Magday's October 2005 statement reinforces this finding, as it shows that the Veteran did not report low back pain until 1991 and then attributed it to work-related causes rather than to active service. Although the Veteran has reported continuous back pain ever since the in-service injury, this history is not credible as it conflicts with more probative evidence of record, including the fact of several post-service injuries and consequent hospitalizations, and Dr. Magday's October 2005 statement. Indeed, according to the September 1967 VA examination report, the Veteran was doing "heavy work" in a construction job shortly after service separation which was causing or aggravating his back pain, and his history of working in construction and for a city fire department-a job he had for over ten years-indicates that he did intensive physical labor for much of his early career. Thus, to the extent the Veteran has had a long-standing history of back pain, it is accounted for by his post-service work, which he described as involving heavy lifting and causing injuries to the back requiring several hospitalizations, rather than his period of active service. The fact that he was able to do such physically demanding work for many years also indicates that his in-service back injury and resulting symptoms were acute in nature and not significant enough to deter him from such work. Finally, the Veteran's current degenerative disc disease and stenosis of the lumbar spine were not diagnosed until many years after separation from service, and the VA examiner indicated that his reported in-service injury would not be sufficient to cause or aggravate his current pathology. Notably, the September 1967 VA x-ray study shows no degenerative disc disease or stenosis, but only mild straightening of the lordotic curve which has not been diagnosed during the pendency of this claim. Accordingly, neither a chronicity in service nor a continuity of symptoms after service has been established, and the preponderance of the evidence otherwise weighs against a nexus between the Veteran's current lumbar spine disorder and his period of service. Thus, service connection on a direct basis is not warranted. See Walker, 708 F.3d at 1338-1339; Shedden, 381 F.3d at 1166-67; 38 C.F.R. § 3.303. Service connection for a chronic disease of the lumbar spine on a presumptive basis is also not warranted. Although he was diagnosed with minimal straightening of the lordosis within a year of active service-a finding which is not recorded in any treatment records during the pendency of this claim, to include x-ray and MRI reports-no other pathology of the spine, including arthritis, was found in the September 1967 VA x-ray study. Thus, as arthritis of the lumbar spine did not manifest within a year of service separation, the criteria for service connection on a presumptive basis have not been satisfied. See 38 C.F.R. §§ 3.307, 3.09. In sum, the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for a lumbar spine disorder is denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 2. Left Knee Disorder The Veteran claims entitlement to service connection for a left knee disorder. For the following reasons, the Board finds that service connection is not warranted. The VA treatment records show complaints of left knee pain in November 2002 and March 2007, but do not reflect diagnoses of any pathology specific to the left knee. While the Veteran is competent to report pain and discomfort of the knee, pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). A chronic disability must be diagnosed to accompany his complaints. In the absence of a current disability of the left knee, service connection cannot be established. See Shedden, 381 F.3d at 1166-67; see also Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Moreover, although the Veteran indicated in a January 2005 statement that his left knee had been treated in February 1966 or 1967 during active service, he has not provided any other arguments or explanation in support of his claim. The service treatment records do not reflect treatment for or complaints of left knee problems, and he denied a history of a trick or locked knee in the February 1967 Report of Medical History, as well as swollen or painful joints. His lower extremities were clinically evaluated as normal in the February 1967 separation examination report. The Veteran has not otherwise described the nature of his left knee symptoms in service or the treatment he received, and has not reported an in-service injury to the knee. He has also not reported a continuity of symptoms since active service. The first documentation of his left knee pain is in the VA treatment records, which only date back to 2002. Thus, the evidence does not show a chronicity in service or a continuity of symptoms after service. See Walker, 708 F.3d at 1338-1339; 38 C.F.R. § 3.303(b). Further, given the long period of several decades between the Veteran's active service and the earliest credible evidence of left knee pain, the preponderance of the evidence weighs against any other basis for a relationship to service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a proper consideration for the trier of fact is the amount of time that has elapsed since military service, and that evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the Veteran's health and medical treatment during and after military service, as evidence of whether a condition was incurred in service). Thus, the nexus element of the three-part test under Shedden has not been satisfied. See Shedden, 381 F.3d at 1166-67; see also See Walker, 708 F.3d at 1338-1339; 38 C.F.R. § 3.303(a). In sum, the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for a left knee disorder is denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 3. Arthritis The Veteran claims entitlement to service connection for arthritis. For the following reasons, the Board finds that service connection is not warranted. The service treatment records are negative for diagnoses of arthritis or complaints of joint pain, and there is no evidence of arthritis until the VA treatment records dating from 2002 to 2012, which show diagnoses of osteoarthritis without specifying which joints are affected (apart from the lumbar spine). The Veteran has not submitted any argument or evidence supporting a relationship between his currently diagnosed arthritis and his period of service. He has not related any in-service injuries which may have caused the later development of arthritis apart from the injury to his low back, for which service connection has been denied, as discussed above. Thus, in the absence of any evidence that the Veteran's arthritis manifested in service or within one year of service separation, or is otherwise related to service, service connection for arthritis is not warranted on a direct or presumptive basis. See Walker, 708 F.3d at 1338-1339; 38 C.F.R. §§ 3.303, 3.307, 3.309. Accordingly, the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for arthritis must be denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 4. Hearing Loss and Tinnitus The Veteran claims entitlement to service connection for hearing loss and tinnitus. For the following reasons, the Board finds that service connection is not warranted. Impaired hearing will be considered to be a disability under the laws administered by VA 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. The Court has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The auditory thresholds set forth in 38 C.F.R. § 3.385 establish when hearing loss is severe enough to be considered a disability eligible for service connection. Hensley 5 Vet. App. at 157, 159. With regard to tinnitus, this disorder is defined as "a noise in the ears such as ringing, buzzing, roaring, or clicking." Smith v. Principi, 17 Vet. App. 168, 170 (2003) (quoting DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1714 (28th ed. 1994)). It is generally subjective in type. DORLAND'S, 1956 (31st ed. 2007). Because tinnitus is subjective, its existence is generally determined by whether or not the veteran claims to experience it. Thus, for VA purposes, tinnitus is a disorder with symptoms that can be identified through lay observation alone. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran has not provided any argument in support of a relationship between his hearing loss or tinnitus and his period of active service. He has not alleged hazardous noise exposure or acoustic trauma from such exposure, and his service personnel records do not show combat service. He also does not state that he experienced hearing loss in service or shortly after separation. The April 1965 induction examination report includes an audiogram showing puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 5 (15) 5 (15) / -5 (0) LEFT 5 (20) 5 (15) 5 (15) / 20 (25) The puretone thresholds at 3000 Hertz were not recorded. The February 1967 separation examination report includes an audiogram showing puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 (30) 5 (15) 10 (20) / 15 (20) LEFT 10 (25) 10 (20) 10 (20) / 25 (30) VA audiometric readings prior to June 30, 1966, and service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to units that have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). The current definition for a hearing loss disability found at 38 C.F.R. § 3.385 is based on ISO units. The above audiograms therefore must be converted from ASA to ISO units. This means adding to the reported findings 15 decibels at the 500 dB level, 10 decibels at the 1000, 2000, and 3000 dB levels, and 5 decibels at the 4000 dB level. In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses. The service audiograms, as converted, indicate that the Veteran had some hearing loss in the left ear at 4000 Hertz when he entered active service, and some hearing loss in both ears at separation. See 38 C.F.R. § 3.385; Hensley, 5 Vet. App. at 157, 159. However, his hearing acuity was evaluated as normal in the February 1967 separation examination report, and he denied a history of hearing loss in the February 1967 Report of Medical History. The service treatment records are negative for tinnitus or ringing in the ears, and the Veteran has not stated that his tinnitus manifested during this time. The earliest post-service evidence of hearing loss is a January 2003 VA treatment record showing the results of puretone threshold testing, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 20 30 45 LEFT 20 20 30 35 45 The January 2003 audiometric testing shows that the Veteran has a hearing loss disability in both ears. 38 C.F.R. § 3.385; Hensley, 5 Vet. App. at 157, 159. In a February 2004 VA treatment record, the Veteran reported decreasing hearing over the past year. The preponderance of the evidence weighs against a relationship between the Veteran's current hearing loss disability and his period of active service. The audiogram showing some hearing loss at separation does not establish chronicity at the time. See 38 C.F.R. § 3.303(b). Moreover, the Veteran has not stated that his hearing loss manifested in service or that it has been present ever since active service, and the earliest post-service evidence of hearing loss is not dated until 2003 or over thirty-five years after separation. Thus, a continuity of symptomatology has not been established. The Veteran has not alleged, and the evidence does not otherwise show, acoustic trauma during service. Moreover, the long period of time of several decades between the Veteran's period of active service and his current bilateral hearing loss disability otherwise weighs against a relationship to service. See Maxson, 230 F.3d at 1333. In the absence of argument or evidence supporting a relationship between the Veteran's current bilateral hearing loss disability and his period of service, service connection on a direct basis is not warranted. See Walker, 708 F.3d at 1338-1339; 38 C.F.R. § 3.303. Because there is no evidence showing that hearing loss manifested to a compensable degree within one year of service separation, service connection on a presumptive basis is also not established. See 38 C.F.R. §§ 3.307, 3.309. Similarly, because there is no evidence of tinnitus prior to the present claim, which is dated decades after the Veteran's service, and no evidence of a relevant in-service disease, injury, or event which may have caused the later onset of tinnitus, the criteria for service connection for tinnitus is not established. See Walker, 708 F.3d at 1338-1339; 38 C.F.R. § 3.303. Accordingly, the preponderance of the evidence is against the Veteran's claims. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for a bilateral hearing loss disability and tinnitus is denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. ORDER Entitlement to service connection for a lumbar spine disorder is denied. Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for arthritis is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs