Citation Nr: 1329170 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 10-00 739 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a respiratory disorder, including as a qualifying chronic disability. 4. Entitlement to service connection for a left knee disorder, including as a qualifying chronic disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, served a period of active duty for training (ACDUTRA) from July 2005 to November 2005, and was on active duty from March 2006 to June 2007 and from May 2009 to June 2010. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Portland, Oregon. The issues which remain on appeal were currently before the Board in June 2011, at which time they were remanded for additional development. In February 2013, the Board once again remanded this matter to schedule the Veteran for a Travel Board hearing at the RO. The Veteran was scheduled for a Travel Board hearing in June 2013. In a June 2013 statement in support of claim, the Veteran requested that the scheduled Travel Board hearing be cancelled as he was currently incarcerated and would not be able to attend the hearing. Based upon the above, the required development has been completed. See Stegall v. West, 11 Vet. App. 268 (1998). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A current hearing loss disability for VA rating purposes has not been demonstrated for either ear. 2. The Veteran's tinnitus had its onset in service. 3. The Veteran does not have a diagnosed respiratory disability. 4. Symptoms of a respiratory disorder did not manifest in service or to degree of 10 percent at any time since service. 5. The Veteran does not currently have a chronic residual disability of the left knee. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 101, 1110, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309, 3.385 (2012). 2. Resolving reasonable doubt in favor of the Veteran, tinnitus was incurred in service. 38 U.S.C.A. §§ 101, 1110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 3. The criteria for service connection for a respiratory disorder, to include as a qualifying chronic disability, have not been met. 38 U.S.C.A. §§ 101, 1110, 1117 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.317 (2012). 4. The criteria for service connection for a left knee disability, to include as a qualifying chronic disability, have not been met. 38 U.S.C.A. §§ 101, 1110, 1117 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. As it relates to the issue of service connection for tinnitus, as the Board is granting the full benefit sought on appeal, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (VA Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). As it relates to the issues of service connection for hearing loss, a respiratory disorder, and a left knee disorder, in December 2007 and June 2011 letters, the RO provided the Veteran with notice that informed him of the evidence needed to substantiate his claims. The letters told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letters further told him to submit relevant evidence in his possession. The December 2007 and June 2011 letters also provided the Veteran with notice as to the disability rating and effective date elements of the claims. Although some of the notice letters were not sent before the initial RO decision in this matter, the Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and been given ample time to respond, the RO/AMC has also readjudicated the case by way of a supplemental statement of the case issued after the notice was provided. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Furthermore, the Veteran has presented detailed argument which shows he is aware of what is needed to substantiate the claim. As it relates to the duty to assist, the Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, VA examination reports, and lay evidence. No additional pertinent evidence has been identified by the claimant. As it relates to the necessity for an examination for hearing loss, the Veteran was scheduled for a VA examination in December 2012 to determine whether he had a current hearing loss disability, and, if so, to help determine the etiology of the hearing loss. The Veteran failed to appear for the requested examination, and has not provided good cause as to why he failed to report. The duty to assist in the development and the adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran's failure to report is a factor in VA's decision to adjudicate the current claim without further development of the claim. See 38 C.F.R. § 3.655 (2012) (stating that when entitlement to a VA benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, an original claim will be rated based on the evidence of record). As it relates to the claim of service connection for a respiratory disorder, the Board notes that the Veteran was scheduled for a VA examination in October 2012. At the time of the examination, the Veteran reported that he had no respiratory problems. Furthermore, the VA examiner noted that a review of the claims folder had revealed that the Veteran had not been diagnosed with any respiratory disorder. The VA examiner diagnosed no respiratory disorder; consequently, as there was no diagnosed disorder, the examiner did not reach the question of nexus to service, so did not offer an opinion. As it relates to the claim of service connection for a left knee disorder, the Board notes that the Veteran was scheduled for a VA examination in October 2012. At the time of the examination, the Veteran reported that he had minimal left knee problems. The examiner provided a detailed examination which revealed no evidence of a left knee disorder. The Board finds that the actions taken by the RO/AMC in conjunction with Board's June 2011 remand comply with the requested directives. See Stegall, 11 Vet. App. at 271 (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). Moreover, neither the Veteran nor his representative has in any way questioned the adequacy of the examination or the examiner's opinions. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements by him and through his representative and by way of a hearing if so desired. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further notice or action is necessary to assist the Veteran in substantiating this claim. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). In this case, the Board has thoroughly reviewed all the evidence in the Veteran's claims folder. 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 the Veteran or on his behalf. 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). Service Connection-General Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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. 38 C.F.R. § 3.303(d). The conditions at issue, with the exception of sensorineural hearing loss, are not "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) do not apply to the non-chronic diseases. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C.A. § 101(21),(24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110 (West 2002). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). As it relates to a qualifying chronic disability, service connection may be established on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1) (VA has issued an interim final rule extending this date to December 31, 2016). In claims based on undiagnosed illness, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Notably, laypersons are competent to report objective signs of illness. Id. A "qualifying chronic disability" for purposes of 38 U.S.C.A. § 1117 is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (C), any diagnosed illness that the VA Secretary determines in regulation prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2),(3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). Effective July 13, 2010, VA has amended its adjudication regulations governing presumptions for certain Persian Gulf War Veterans. Such revisions amend § 3.317(a)(2)(i)(B) to clarify that chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome are examples of medically unexplained chronic multisymptom illnesses and are not an exclusive list of such illnesses. Additionally, the amendment removes § 3.317(a)(2)(i)(B)(4) which reserves to the VA Secretary the authority to determine whether additional illnesses are 'medically unexplained chronic multisymptom illnesses' as defined in paragraph (a)(2)(ii) so that VA adjudicators will have the authority to determine on a case-by-case basis whether additional diseases meet the criteria of paragraph (a)(2)(ii). These amendments are applicable to claims pending before VA on October 7, 2010, as well as claims filed with or remanded to VA after that date. See 75 Fed. Reg. 1,997 (Oct. 7, 2010). Compensation under 38 U.S.C.A. § 1117 shall not be paid if: (1) there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). The term "Persian Gulf Veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(d)(1). The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(d)(2). The Persian Gulf War period runs from August 2, 1990 to a date not later than December 31, 2016. 38 U.S.C.A. § 101(33). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. Under 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or the death of an immediate family member. 38 C.F.R. § 3.655(a). When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b) (2012). VA regulations define an original claim as an initial application on a form prescribed by the Secretary. 38 C.F.R. § 3.160 (2012). Service Connection for Bilateral Hearing Loss The disorder at issue, namely hearing loss, if sensorineural in nature, is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker, 708 F.3d 1331. Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 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. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is between 0 and 20 decibels, and higher threshold shows some degree of hearing loss. The provisions of 38 C.F.R. § 3.385 do not require that hearing loss be shown as defined in that regulation at the time of separation from service, if there is sufficient evidence to demonstrate a relationship between the veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran contends that his current bilateral hearing loss is due to noise exposure during service as a result of duties performed in service. After a review of all the evidence, the Board finds the Veteran was exposed to loud noises during service. The Veteran reported a history of in-service noise exposure as the result of his duties performed during service, which the Board finds occurred, based upon the duties performed by the Veteran in service. The Board next finds that the weight of the evidence demonstrates that the Veteran does not have a current bilateral hearing loss "disability" for VA rating purposes, and has not had such disability at any time prior to or during this claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A review of the Veteran's service treatment records reveals that, at the time of a July 2005 audiogram, testing revealed pure tone thresholds, in decibels, of 10, 15, 15, 5, and 0 for the left ear; and 10, 5, 10, 0, and 0, for the right ear, at 500, 1000, 2000, 3000, and 4000 Hertz. At the time of a February 2006 audiogram, testing revealed pure tone thresholds, in decibels, of 10, 15, 10, 0, and 0 for the left ear; and 10, 10, 5, 0, and 0 for the right ear, at 500, 1000, 2000, 3000, and 4000 Hertz. At the time of a May 2007 audiogram, testing revealed pure tone thresholds, in decibels, of 10, 15, 20, 5, and 10 for the left ear; and 5, 20, 10, 10, and 5, for the right ear, at 500, 1000, 2000, 3000, and 4000 Hertz. At the time of a February 2009 audiogram, testing revealed pure tone thresholds, in decibels, of 15, 10, 10, 0, and 0 for the left ear; and 10, 5, 10, 0, and 5 for the right ear, at 500, 1000, 2000, 3000, and 4000 Hertz. At the time of an April 2010 audiogram, testing revealed pure tone thresholds, in decibels, of 15, 15, 20, 10, and 20 for the left ear; and 20, 15, 20, 5, and 35 for the right ear, at 500, 1000, 2000, 3000, and 4000 Hertz. There were no speech recognition percentage scores reported with regard to any of the above test results. As noted above, in December 2012, the Veteran was scheduled for a VA examination to determine the nature and etiology of any current hearing loss, including whether there was current hearing loss "disability," and its relationship, if any, to his period of service. The testing performed at that time also was to include speech recognition percentage scores; however, the Veteran failed to appear for the requested examination and has provided no reason for his failure to appear. The evidence that is of record does not establish a current "disability" of hearing loss that meets VA standards at 38 C.F.R. § 3.385. The test results which have been reported above demonstrate that the Veteran has not met the criteria for hearing loss (or impairment) that is considered a disability for VA disability compensation purposes under 38 C.F.R. § 3.385. As to service connection for bilateral hearing loss, the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110; see Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the United States Court of Appeals for Veterans Claims' interpretation of 38 U.S.C.A. § 1110 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and, therefore, the decision based on that interpretation must be affirmed). The United States Court of Appeals for the Federal Circuit has held that for purposes of showing a current disability, there must be evidence of the disability at the time of the claim for VA compensation, as opposed to sometime in the past. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves). While the Veteran may be competent to report diminished hearing, he has not been shown to have the requisite training or credentials needed to ascertain whether the auditory thresholds or speech recognition thresholds set forth in 38 C.F.R. § 3.385 have been met as this is a medically complex question that is also based on objective testing (audiometric and speech recognition) that the Veteran cannot perform on himself. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The competent evidence, consisting of the results of the in-service audiological evaluations, affirmatively shows that the Veteran does not currently have a bilateral hearing loss disability as defined in 38 C.F.R. § 3.385. The Veteran was scheduled for a VA examination to determine if he had bilateral hearing loss disability for VA rating purposes in December 2012. He failed to appear for the requested examination and has provided no reason for his failure to appear. As such, there has been no showing of a hearing loss (impairment) to the degree of "disability" as defined for VA rating purposes during service or subsequent to service. For VA disability compensation purposes, the Veteran's bilateral hearing impairment does not meet the regulatory criteria to be considered a hearing loss "disability." See 38 C.F.R. § 3.385. Because a current disability of hearing loss within the meaning of 38 C.F.R. § 3.385 has not been demonstrated, the presumptions referable to chronic diseases could not serve to establish service connection. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. As such, the criteria for service connection for bilateral hearing loss have not been met, and the claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for Tinnitus The Veteran maintains that he currently has tinnitus as a result of acoustic trauma sustained during his period of service, to include live ammunition being fired in close proximity to his head in 2007. Entitlement to service connection for tinnitus cannot be established through application of 38 C.F.R. § 3.303(b); however, 38 C.F.R. § 3.303(d) affords that service connection may 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. In this case, the Veteran has provided credible evidence of in-service acoustic trauma, he has stated that he experienced symptoms during service, and ringing in the ears was also noted on several post-deployment examinations. On the question of in-service acoustic trauma, a veteran is competent to describe being exposed to loud noise. The Veteran's lay statements regarding exposure to live fire while in service are found to be credible as they have been internally consistent and are also consistent with the circumstances of his service in the Persian Gulf as an Infantryman. Additionally, the Board accepts the Veteran's account of having been in close proximity to live rounds of fire. On the question of onset of symptoms of tinnitus in service and symptoms since service, the service treatment records reveals that at the time of a May 2007 post-deployment health assessment, which was within the active duty time frame, the Veteran reported having ringing of the ears. Moreover, at the time of an April 2010 post-deployment health assessment, the Veteran checked the "yes" boxes when asked if he had ringing in the ears and indicated that he had had ringing in the ears in the past week. The Veteran also indicated that he had ringing in his ears at the time of an August 2010 post-deployment health re-assessment. A veteran is competent to describe observable symptoms such as ringing in the ears as these are observable symptoms. See Jandreau v. Nicholson, 492 F.3d at 1376-77; Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (a veteran is competent to testify that he experienced ringing in his ears in service and had experienced ringing in his ears ever since service). Resolving reasonable doubt in the Veteran's favor, the Board finds that tinnitus was incurred in active service. As such, the evidence demonstrates credible evidence of in-service acoustic trauma, in-service onset of ringing in the ears, unremitting tinnitus problems since service, and that the Veteran currently has tinnitus. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for a Respiratory Disorder The Veteran maintains that he currently has a respiratory/lung disorder which began in service and has continued since service which arises as a result of exposure to chemicals during the Gulf War. Available service treatment records do not reveal any complaints, findings, or treatment for a respiratory disorder. On a June 2004 report of medical history form, the Veteran checked the "no" box when asked if he had asthma or breathing problems, shortness of breath, bronchitis, or problems with wheezing. At the time of a July 2005 medical examination, normal findings were reported for the lungs and chest. At the time of a May 2007 post-deployment health assessment, the Veteran checked the "no" box when asked if he were having difficulty breathing. At an April 2010 health assessment, the Veteran indicated that he was not having trouble breathing, had not had trouble breathing, and was not bothered by any breathing problems. The Board does note that, at the time of an August 2010 post deployment health assessment, the Veteran checked the "yes" box when asked if he had trouble breathing; however, there were no objective findings of respiratory or breathing problems reported at that time. In conjunction with the June 2011 Board remand, the Veteran was afforded a VA respiratory examination in October 2012. At the time of the examination, it was indicated that the Veteran had never been diagnosed with a respiratory condition. The examiner noted that he had reviewed the claims folder and stated that the Veteran had no respiratory complaints at the time of the examination. The Board finds that the weight of the evidence demonstrates that the Veteran does not have a respiratory disorder, to include symptoms of a qualifying chronic disability to degree of 10 percent in severity. With the exception of the Veteran reporting that he had trouble with breathing on his August 2010 post-deployment re-assessment, he has continuously denied having any respiratory problems, including at the time of the most recent VA examination, performed in December 2012. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich, 104 F. 3d 1328. The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain, 21 Vet. App. at 321. However, where, as here, the overall evidence of record fails to support a diagnosis of the claimed disability, that holding is of no advantage; therefore, the preponderance of the evidence is against the claim, and service connection is not warranted for a respiratory disorder. Next, turning to the Veteran's contention that any respiratory disorder is a symptom of a chronic qualifying disability, which includes an undiagnosed illness, based upon a review of service records, the Board finds that the Veteran is a Persian Gulf Veteran. However, as noted above, service connection may only be established on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1). In the present case, there has been no demonstration that the Veteran has respiratory problems which result in findings or impairment analogous to cor pulmonale (right heart failure), right ventricular hypertrophy, pulmonary hypertension (shown by Echo or cardiac catheterization), or episode(s) of acute respiratory failure; or that he requires the necessity for outpatient oxygen therapy. There have also been no spirometry readings taken revealing an FEV-1 of 71 to 80 percent predicted, FEV-1/ FVC of 71 to 80 percent predicted, or DLCO (SB) of 66 to 80 percent predicted, as is required for a 10 percent disability evaluation under 38 C.F.R. § 4.97, Diagnostic Codes 6600-6604 and 6840-6847. As the claimed symptoms have not manifested to a degree of 10 percent, the qualifying chronic disability, including undiagnosed illness, presumptive provisions of 38 U.S.C.A. § 1117 do not provide a basis for service connection as a presumptive qualifying chronic disability. In reaching the conclusion, the Board notes that, under the provisions of 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.102, a reasonable 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. However, because the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. Service Connection for a Left Knee Disability After a review of all the evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not sustain a left knee injury or disease in service. Available service treatment records do reveal that the Veteran was seen with complaints of pain in both knees in October 2006 and was given a light duty profile at that time. In an October 2006 medical treatment record, it was noted that the Veteran reported having pain in his knees for the past two weeks. The Veteran was seen for numerous complaints with regard to his right knee in service and service connection is currently in effect for right knee patellofemoral syndrome and instability. While service treatment records reveal that the Veteran was seen with complaints of left knee pain and given a profile for both knees, there were no actual diagnoses of a left knee disorder made at that time. At the time of the April 2010 post-deployment assessment, the Veteran checked the "no" box when asked if he had swollen, stiff, or painful joints. On the August 2010 post-deployment health reassessment, the Veteran checked the "no" box when asked if he had muscle aches; however, he did check the "yes" box when asked if he had swollen, stiff, or painful joints, but there were no findings of a left knee problems reported at that time. The Board finds that the weight of the evidence demonstrates that the Veteran does not currently have a chronic residual disability of the left knee. In conjunction with the June 2011 Board remand, the Veteran was afforded a VA knee examination in October 2012. At the time of the examination, the Veteran reported that that he first injured his knees while in boot camp when he tripped and fell on a ledge of a step, landing on his knees, just below the knee caps. He indicated that they were black and blue for several days; however, he was able to finish training. The Veteran stated that throughout the year of 2006 he had bilateral knee pain and was seen in the military for this. His right knee locked up while on patrol and an evaluation revealed a sprain of the lateral collateral ligament along with patellofemoral syndrome. It was noted that one medical evaluation had considered the additional diagnosis of plica syndrome. The examiner observed that a November 2006 examination revealed a normal knee examination on stabilizing tests. The Veteran stated that he felt that carrying up to 200 pounds of combat gear and going on 4-6 patrols per day aggravated his knee pain considerably. The Veteran indicated that he had minimal issues with his left knee. There were several diagnoses related to the right knee rendered at that time. The examiner did not render a diagnosis as it related to the left knee. Physical examination performed at the time of the October 2012 VA examination revealed range of motion from 0 to 140 degrees with no pain following repetitive motion and no additional limitation after repetitive motion. X-rays of the left knee were normal. There was no functional loss of the left lower extremity and no findings of weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy, instability, disturbances of locomotion, or interference with sitting, standing or weight bearing. There was also no tenderness or pain to palpation for the joint line or soft tissues of either knee. Muscle strength was 5/5, and joint stability, posterior instability, and medial-lateral instability tests were normal. There was no evidence of patellar subluxation/dislocation. While the Veteran has complained of pain associated with the left knee, and he is competent to report any symptoms that come to him through the senses, pain is a symptom and not a diagnosed disability. The Veteran lacks the requisite medical expertise to attribute any left knee pain he experiences to a diagnosed disability involving the left knee. The observable symptoms alone are insufficient to make the diagnosis. Moreover, the Veteran is not capable of differentiating symptoms as to do so would require medical knowledge of all potentially diagnosable disorders based on such symptoms and knowledge of factors that differentiate one diagnosis from another. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). VA does not grant service connection for symptoms alone, without an identified basis for those symptoms. As noted above, the existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich, 104 F. 3d 1328. The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain, at 321. However, where, as here, the overall evidence of record fails to support a diagnosis of the claimed disability, that holding is of no advantage; therefore, the preponderance of the evidence is against the claim, and service connection is not warranted for a left knee disability. Next, turning to the Veteran's contention that any left knee pain is a symptom of a chronic qualifying disability, the Board finds, based upon a review of service records, that the Veteran is a Persian Gulf Veteran. However, as noted above, service connection may only be established on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1). While the Veteran's left knee pain has not been attributed to any known left knee diagnosis, the left knee difficulties have not manifested to a degree of 10 percent or more. As the left knee pain is productive of no limitation of extension or flexion, the criteria for a 10 percent rating based on limitation of motion are not met under Diagnostic Codes 5260 (flexion) or 5261 (extension). As the Veteran does not have diagnosed arthritis, or even any clinical findings suggestive of arthritis or indicative of disability similar to arthritis, the criteria for a 10 percent rating under Diagnostic Code 5003 are also not met. 38 C.F.R. § 4.71a (2012). Thus, the qualifying chronic disability, including undiagnosed illness, presumptive provisions of 38 U.S.C.A. § 1117 do not provide a basis for service connection as a presumptive qualifying chronic disability. In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.102, a reasonable 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. However, because the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. ORDER Service connection for a bilateral hearing loss disorder is denied. Service connection for tinnitus is granted. Service connection for a respiratory disorder, including as a qualifying chronic disability, is denied. Service connection for a left knee disorder, including as a qualifying chronic disability, is denied. ______________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs