Citation Nr: 1751361 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 13-33 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an effective date prior to June 20, 2011 for service connection for anterior cruciate ligament (ACL) reconstruction, status post injury with tricompartment degenerative joint disease (hereinafter "left knee disability"), to include whether clear and unmistakable error (CUE) is present in a March 1992 rating decision that denied service connection for a left knee disability. 2. Entitlement to an initial disability rating (or evaluation) in excess of 10 percent for the left knee disability. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for bilateral hearing loss. 5. Entitlement to service connection for diabetes mellitus type 2, to include as secondary to the service-connected hypertension. 6. Entitlement to service connection for headaches, to include as secondary to the service-connected hypertension. 7. Entitlement to service connection for a back disorder, to include as secondary to the service-connected left knee disability. 8. Entitlement to service connection for a left ankle disorder, to include as secondary to the service-connected left knee disability. 9. Entitlement to service connection for a right ankle disorder, to include as secondary to the service-connected left knee disability. 10. Entitlement to service connection for a left hip disorder, to include as secondary to the service-connected left knee disability. REPRESENTATION Veteran represented by: Cheryl R. King, Agent WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from June 1984 to September 1991. This appeal comes to the Board of Veterans' Appeals (Board) from February 2013 and May 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. An original claim for service connection for a left knee disorder was received in September 1991 (within one year of the Veteran's separation from active service). A March 1992 rating decision, in pertinent part, denied service connection for ACL reconstruction, status post injury with tricompartment degenerative joint disease. The Veteran did not initiate an appeal of the decision or submit any new and material evidence within the applicable one-year period. See 38 C.F.R. § 3.156(b) (2017); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). A claim to reopen service connection for a left knee disorder, and claims for service connection for a back disorder, hearing loss, tinnitus, bilateral ankle disorder, left hip disorder, headaches, and diabetes mellitus were received in June 2011. The February 2013 rating decision, in pertinent part, granted service connection for a left knee disability and assigned a 10 percent initial disability rating effective June 20, 2011 (the day the claim to reopen service connection for a left knee disorder was received by VA), found that the prior March 1992 rating decision denying service connection for a left knee disability was not clearly and unmistakably erroneous, and denied service connection for diabetes mellitus, back, right and left ankle, and left hip disorders, and headaches. The May 2013 rating decision denied service connection for tinnitus and bilateral hearing loss. In October 2016, the Veteran testified at a Board videoconference hearing at the local VA RO in Roanoke, Virginia, before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of the hearing is of record. The issues of an initial disability rating in excess of 10 percent for the left knee disability and service connection for diabetes mellitus, headaches, a back disorder, a left ankle disorder, a right ankle disorder, and a left hip disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A claim seeking service connection for a left knee disorder was received by VA on September 1991 (within one year of the Veteran's separation from active service). 2. A March 1992 rating decision denied service connection for ACL reconstruction, status post injury with tricompartment degenerative joint disease. 3. The March 1992 decision was not based on all the evidence then of record and contained legal error in the assignment of probative value to evidence so as not to constitute a reasonable exercise of rating judgment. 4. But for the factual and legal error in the March 1992 rating decision, the outcome would have been manifestly different and service connection for ACL reconstruction, status post injury with tricompartment degenerative joint disease would have been granted, effective from September 4, 1991. 5. The Veteran sustained acoustic trauma during service. 6. Symptoms of the currently diagnosed tinnitus have been continuous since service. 7. The Veteran does not have, nor has had at any time proximate to or during the course of this appeal, a current hearing loss disability in either ear. CONCLUSIONS OF LAW 1. The March 1992 rating decision denying service connection for ACL reconstruction, status post injury with tricompartment degenerative joint disease was clearly and unmistakably erroneous, and will be revised to grant an earlier effective date for service connection from September 4, 1991. 38 U.S.C.A. § 5109A (West 2014); 38 C.F.R. § 3.105 (2017). 2. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2017). Such notice should also address VA's practices in assigning disability ratings and effective dates for those ratings. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). VA's duties to notify and assist claimants under the VCAA do not apply to allegations of CUE. Parker v. Principi, 15 Vet. App. 407 (2002); Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). Therefore, no further discussion of VCAA duties to notify or assist will take place regarding the CUE issue. The Board is granting service connection for tinnitus, constituting a full grant of the benefit sought on appeal with respect to this issue; therefore, there is no further VCAA duty to notify or assist, or to explain compliance with VCAA duties to notify and assist. The Board is remanding the issues of an initial disability rating in excess of 10 percent for the left knee disability and service connection for diabetes mellitus, headaches, and back, left ankle, right ankle, and left hip disorders. With respect to the issue of service connection for bilateral hearing loss, in this case, notice was provided to the Veteran in July 2011, prior to the initial adjudication of the claim in May 2013. The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, VA and the Veteran's respective duties for obtaining evidence, and VA's practices in assigning disability ratings and effective dates; thus, the Board concludes that VA satisfied its duties to notify the Veteran. VA satisfied its duty to assist the Veteran in the development of the claim. First, VA satisfied its duty to seek, and assist in the procurement of, relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Specifically, the information and evidence that have been associated with the claims file include service treatment records, service personnel records, VA treatment records, VA examination reports, a copy of the October 2016 Board hearing transcript, and lay statements. While the Board is remanding the issue of service connection for diabetes mellitus, in part, to obtain additional VA treatment records, said records relate to the date of onset and diagnosis of diabetes mellitus and do not relate to the issue of service connection for bilateral hearing loss, denied herein. Further, the Board is denying service connection based on lack of a current disability. As such, the further procurement of records remote in time from the current appeal related to a separate disability would not aid in substantiating the appeal. As such, the Board finds that VA has made every reasonable effort to obtain all records relevant to the issue of service connection for bilateral hearing loss. Second, VA satisfied its duty to obtain a medical opinion when required. 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). With respect to the claimed hearing loss disability, the Veteran was provided with a VA examination (the report of which has been associated with the claims file) in May 2013. The Board finds that the VA examination report, in light of the other evidence of record, is thorough and adequate and provides a sound basis upon which to base a decision with regard to the issue of service connection for bilateral hearing loss. The VA examiner personally interviewed and examined the Veteran, including eliciting a history, conducted an audiometric examination, and offered opinions with supporting rationale. The Veteran testified at an October 2016 Board hearing before the undersigned Veterans Law Judge and a transcript is of record. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the Board hearing, the Veterans Law Judge advised the Veteran as to the issues on appeal, what was generally required for service connection, and suggested the importance of getting a medical nexus opinion relating any current disabilities to service or the service-connected left knee disability or hypertension. With respect to service connection for bilateral hearing loss, the Veteran presented evidence of symptoms of the bilateral hearing loss and testified as to in-service events and symptoms since service separation. Further, the Veteran was provided a VA examination that provides additional evidence on the question of whether the Veteran has a currently diagnosed bilateral hearing loss disability that is related to in-service noise exposure. Moreover, neither the Veteran nor the representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) and have not identified any prejudice in the conduct of the hearing. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the notice duties set forth in 38 C.F.R. § 3.103(c)(2), and that the Board can adjudicate the claim based on the current record. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Earlier Effective Date based on CUE in the March 1992 Rating Decision The Veteran alleges CUE in a prior March 1992 rating decision that, in pertinent part, denied service connection for ACL reconstruction, status post injury with tricompartment degenerative joint disease. The contention is that the March 1992 rating decision failed to taken into account the favorable evidence at the time of the September 1991 service connection claim that reflected ongoing in-service treatment for left knee symptoms, including pain and soreness, that demonstrated aggravation of the preexisting left knee disability by (during) service. See September 2012 and March 2013 written statements, October 2016 Board hearing transcript. Previous determinations that are final and binding, including decisions of service connection and other matters, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior rating decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(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, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. The Court has held that there is a three-pronged test to determine whether CUE is present in a prior determination: (1) "[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied," (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). If a veteran wishes to reasonably raise a claim of CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error. Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 967 (1999); Fugo, 6 Vet. App. at 43-44. If the error alleged is not the type of error that, if true, would be CUE on its face, if the veteran is only asserting disagreement with how the RO evaluated the facts before it, or if the veteran has not expressed with specificity how the application of cited laws and regulations would dictate a "manifestly different" result, the claim must be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). Further, VA's failure in the duty to assist cannot constitute CUE. See Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2003). In the present case, the Veteran alleges CUE in a prior March 1992 decision that denied service connection for the left knee disability. The pertinent laws and regulations at the time of this decision were essentially the same as they are now. While 38 C.F.R. § 3.306 was amended in December 1992, this amendment related only to bringing VA regulations into conformance with a statutory provision extending the presumption of soundness for peacetime service from January 31, 1955 to December 31, 1946. See 57 Fed. Reg. 59,296 (December 15, 1992). Both when the March 1992 rating decision was implemented and now, a veteran was considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C.A. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). In this case, the left knee surgical repair of ligaments and torn cartilage was "noted" at service entrance to active service and the presumption of soundness at entry into service does not attach. 38 U.S.C.A. § 1111; see September 1993 service enlistment physical examination report and associated report of medical history. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306. As the Veteran's preexisting left knee surgical repair of ligaments and torn cartilage was noted at the time of entry into service, service connection for a left knee disability may be granted only if it is shown that the left knee disability worsened in severity beyond its natural progression during service, i.e., was "aggravated by" service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Further, 38 C.F.R. § 3.102, both then and now, states that when a reasonable doubt arises due to an approximate balance of positive and negative evidence, such doubt shall be resolved in favor of the Veteran. The March 1992 rating decision states that the service treatment records from both periods of service (1983 to 1987 and from 1987 to 1991) were normal with "no evidence of treatment or complaints of the left knee." The rating decision, while noting that the Veteran was provided with disability severance pay from service because of the left knee, goes on to state that there is "no evidence of treatment for manifestations of symptoms of the left knee until April 1991 when [the Veteran] was seen by a Physical Evaluation Board." The rating decision denied service connection for a left knee disability based on no evidence of aggravation of the disability beyond a normal progression. Evidence of record at the time of the March 1992 rating decision included service treatment records and the Veteran's lay statements. The September 1983 enlistment physical examination report and associated report of medical history note the left knee surgical repair of ligaments and torn cartilage. The reviewing physician indicated the left knee was not considered disabling (NCD). The service treatment records reflect that the Veteran was seen multiple times for left knee pain during service. A September 1985 service treatment record notes that the Veteran reported positive left knee pain when jogging. Marked crepitus was noted on range of motion testing. A December 1990 service treatment record notes that the Veteran reported the left knee was bothering him and was chronically sore. Upon physical examination, marked crepitus and medial tenderness was noted and assessed as left knee degenerative joint disease. An April 1991 service treatment record notes that the Veteran reported the left knee "slipping out of place several times" the previous day. X-rays revealed marked degenerative changes and a diagnosis of left knee degenerative joint disease was rendered. After considering the Veteran's contentions, the evidence of record at the time of the March 1992 rating decision, and the reasons and bases stated in the rating decision, the Board finds clear error in the March 1992 decision finding that there was "no evidence of treatment for manifestations of symptoms of the left knee until April 1991 when [the Veteran] was seen by a Physical Evaluation Board." There are several notations throughout the service treatment records noting ongoing problems with the left knee. There is no indication that the RO addressed, or even considered, these in-service instances of treatment; therefore, the March 1992 rating decision was based on an incomplete, and, therefore, inaccurate factual history. Based on the above, at the time of the March 1992 rating decision, the evidence was sufficient to at least place in equipoise the question of whether the preexisting left knee disability was aggravated by service. The evidence of record at the time of the March 1992 rating decision includes service treatment records indicating multiple treatment for left knee symptomatology during service; a June 1991 Medical Board report noting that the chronic left knee pain, status post anterior cruciate ligament reconstruction, which existed prior to service, was aggravated by service; that the tricompartmental degenerative joint disease did not exist prior to enlistment; the disability severance pay the Veteran received for the left knee disability; and the Veteran's service connection claim was filed within one week of service separation. This evidence was sufficient to meet the burden of showing aggravation by (during) service, thereby shifting the burden to VA to show clear and convincing evidence of non-aggravation by service to overcome the presumption of aggravation by service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. In this case, the evidence at the time of the March 1992 rating decision is insufficient to meet the very high burden (clear and unmistakable evidence) to overcome the presumption of aggravation by service. There was no evidence of record at the time of the March 1992 rating decision that the preexisting left knee disability was not aggravated by service. But for the March 1992 rating decision's evidentiary and legal errors, the outcome in the March 1992 decision would have been a grant of service connection for ACL reconstruction, status post injury with tricompartment degenerative joint disease based on aggravation of a preexisting disability under 38 C.F.R. § 3.306. The Board finds that the March 1992 decision is clearly and unmistakably erroneous; therefore, the decision should be revised, resulting in a grant of service connection for ACL reconstruction, status post injury with tricompartment degenerative joint disease, effective from September 4, 1991, the day after the Veteran's separation from active service. 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105. Service Connection Laws and Regulations Under the relevant laws and regulations, service connection may be granted 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) (2017). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In this case, the Veteran has claimed service connection for bilateral hearing loss and tinnitus. As discussed below, the Board finds that the weight of the evidence is against a finding that the Veteran has current bilateral hearing loss to a disabling level for VA compensation purposes. As the evidence shows no current hearing loss disability that meets the standards of 38 C.F.R. § 3.385, the Board does not reach the question of whether the Veteran's bilateral hearing loss is a "chronic disease" under 38 C.F.R. § 3.309(a) (as other organic disease of the nervous system). The Veteran currently has tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (observing that "ringing in the ears is capable of lay observation"). The Court has held that tinnitus, at a minimum where there is evidence of acoustic trauma, is an organic disease of the nervous system. See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). As such, the presumptive provisions based on "chronic" symptoms in service and "continuous" symptoms since service at 38 C.F.R. § 3.303(b) or manifesting within one year of service separation at 38 C.F.R. § 3.307 (2017) apply to the issue of service connection for tinnitus. For a chronic disease such as tinnitus, service connection may be established under 38 C.F.R. § 3.303(b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Continuity of symptomatology after service is required where a condition noted during service is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). The presumptive service connection provisions based on "chronic" in-service symptoms and "continuity of symptomatology" after service under 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)). Service connection may also be established with certain chronic diseases, including organic diseases of the nervous system, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from 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, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive 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. While the Veteran had service during the Persian Gulf War era, the service personnel records do not reflect service in the Southwest Asian Theater; therefore, the Veteran is not a "Persian Gulf veteran" and the provisions of 38 U.S.C.A. § 1117 (West 2014) and 38 C.F.R. § 3.317 (2017) are not for application. 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, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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 0 to 20 decibels (dB), and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran essentially contends that he developed bilateral hearing loss and tinnitus during service due to in-service exposure to acoustic trauma, and that hearing loss and tinnitus continued after service separation. Specifically, the Veteran states that he experienced acoustic trauma during service from in-service noise exposure from routinely being in close proximity to the flight line, including the office and berthing quarters were near aircraft catapults. See October 2013 notice of disagreement, October 2016 Board hearing transcript. Service Connection for Tinnitus First, the evidence of record demonstrates that the Veteran has a current tinnitus disability. At the May 2013 VA examination, the Veteran reported constant tinnitus. See Charles, 16 Vet. App. at 374 (observing that "ringing in the ears is capable of lay observation"). The evidence in the record does not suggest that the Veteran's account of having tinnitus is not credible. Next, the Board finds that the Veteran experienced in-service acoustic trauma. As detailed above, the Veteran reported that he was exposed to acoustic trauma from in-service noise exposure from working and sleeping next to the flight line near aircraft catapults. The Veteran is competent to report noise exposure in service. See Bennett v. Brown, 10 Vet. App. 178 (1997) (the Board may rely upon lay testimony as to observable facts). The Board finds the Veteran's account of in-service noise exposure to be credible and consistent with the places, types, and circumstances of his service. 38 U.S.C.A. § 1154(a) (West 2014). The Board further finds that the evidence is at least in equipoise on the question of whether symptoms of tinnitus have been continuous since service. Although the Veteran was not specifically diagnosed with a tinnitus disability of either ear in active service, such is not required. See 38 C.F.R. § 3.303(d) (providing service connection may be granted for any disease diagnosed after service when the evidence establishes in-service incurrence). The evidence of record demonstrates acoustic trauma in service, and the Veteran has reported noticing continuous tinnitus during and since service separation. Service treatment records do not contain any complaints, symptoms, diagnoses or treatment attributed to tinnitus. The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). Review of a May 2013 VA examination report reflects that the VA examiner's negative nexus opinion is based, in large part, on the lack of documented tinnitus during service. The mere lack of documentation in the service records, in itself, is not a sufficient basis for a rationale. See Buchanan, 451 F.3d 1331. As such, the Board accords the May 2013 VA examination report low probative weight and finds it outweighed by the other evidence of record. The Board finds that the Veteran has provided credible statements as well as lay histories provided to medical personnel that the tinnitus symptoms have been continuous since service. Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay statements regarding continuity of symptomatology provide a direct link between the active service and the current state of his condition). At the October 2016 Board hearing, the Veteran testified that the tinnitus started during service and continued intermittently since service separation. The Board finds the Veteran's assertions of the onset of tinnitus during service and his reports of tinnitus symptomatology since service, in the context of the demonstrated in-service acoustic trauma, and current diagnoses, are sufficient to place in equipoise the question of whether the current tinnitus was incurred in service and is etiologically related to the noise exposure in service. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that, based on continuous post-service symptoms, presumptive service connection for tinnitus is warranted under 38 C.F.R. § 3.303(b). 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The grant of presumptive service connection for tinnitus renders moot all other theories of service connection. Service Connection for Bilateral Hearing Loss The Board finds that the weight of the evidence is against a finding that the Veteran has a current diagnosed hearing loss disability of either ear for VA purposes. With respect to the claimed bilateral hearing loss, audiometric testing conducted at the May 2013 VA examination reflects the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 LEFT 20 20 25 25 35 RIGHT 20 20 25 25 30 Maryland CNC score: Left: 100 percent, Right: 100 percent The VA examiner noted that, even though the Veteran had in-service noise exposure, the Veteran did not have right or left ear hearing loss for VA disability compensation purposes. While the Veteran does experience some diminished hearing acuity in both ears, the evidence of record, including the most recent May 2013 VA audiology examination, does not show that the degree of hearing loss or impairment in either ear that meet the criteria of hearing loss disability under 38 C.F.R. § 3.385. For hearing loss to exist as a current disability, the provisions of 38 C.F.R. § 3.385 must be met. See Meedel v. Shinseki, 23 Vet. App. 277, 283 (2009); Hensley, 5 Vet. App. at 158. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C.A. §§ 1110, 1131; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See also McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that service connection can also be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (holding that a current disability may include a diagnosis at the time the claim was filed or during its pendency). For the reasons discussed above, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a current hearing loss disability of either ear meeting the criteria under 38 C.F.R. § 3.385. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER As the March 1992 rating decision contained clear and unmistakable error in the denial of service connection for a left knee disability, the March 1992 rating decision is revised to reflect a grant of service connection for anterior cruciate ligament reconstruction, status post injury with tricompartment degenerative joint disease, with an earlier effective date of September 4, 1991. Service connection for tinnitus is granted. Service connection for bilateral hearing loss is denied. REMAND Initial Rating for the Left Knee Disability At the October 2016 Board hearing, the Veteran contended that the left knee disability had worsened. See Board hearing transcript at 8. Further, in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 (2017) requires that all VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. It is not clear whether joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, was conducted at the March 2012 VA examination during the appeal period. For these reasons, the Board finds that an additional VA examination is warranted. Service Connection for Diabetes Mellitus and Headaches VA has a duty to assist claimants by gathering all pertinent records of VA treatment and making reasonable efforts to obtain private medical records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). At the October 2016 Board hearing, the Veteran indicated that he had been diagnosed with diabetes mellitus at a VA hospital in 1991. See Board hearing transcript at 14-17. These records have not been associated with the claims file and remand is required to attempt to obtain them. The Veteran contends that the headaches and diabetes mellitus are associated with the service-connected hypertension. See October 2013 notice of disagreement; October 2016 Board hearing transcript. An August 2011 VA examination report notes that the Veteran reported periodic headaches associated with the hypertension. At the October 2016 Board hearing, the representative contended that the diabetes mellitus may be associated with the high cholesterol readings noted on multiple lab studies during service in April 1991. The representative contends that cholesterol can lead to diabetes or be a symptom. See Board hearing transcript at 14. No VA or private medical opinion is of record with an etiology opinion specifically addressing the questions of whether diabetes mellitus were incurred in or caused by service, specifically the high cholesterol readings during service, or whether the diabetes mellitus or headaches were caused or aggravated by the service-connected hypertension. Based on the above, the Board finds that a VA medical opinion is necessary as there remains some question as to the etiology of the claimed diabetes mellitus and headaches. See 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 83-86. Service Connection for Back, Left Ankle, Right Ankle, and Left Hip Disorders The Veteran contends that the back, right ankle, left ankle, and left hip disorders are related to the service-connected left knee disability. See October 2013 notice of disagreement. At the October 2016 Board hearing, the Veteran contended that the weakening of the left knee caused excess weight on the ankle and the knee could not support the body, thus causing injury to the back. See Board hearing transcript at 20-21. No VA or private medical opinion is of record with an etiology opinion specifically addressing the questions of whether the back, right ankle, left ankle, and left hip disorders were caused or aggravated by the service-connected left knee disability. Based on the above, the Board finds that a VA medical opinion would be helpful because there remains some question as to the etiology of the claimed back, right and left ankle, and left hip disorders. See 38 C.F.R. § 3.159(c)(4); McLendon at 83-86. Accordingly, the issues of an initial disability rating in excess of 10 percent for the left knee disability, and service connection for diabetes mellitus, headaches, a back disorder, a left ankle disorder, a right ankle disorder, and a left hip disorder, are REMANDED for the following action: 1. The AOJ should obtain and associate with the record all outstanding VA treatment records pertaining to the service-connected left knee disability, and the claimed diabetes mellitus, headaches, back disorder, right ankle disorder, left ankle disorder, and left hip disorder. The AOJ should attempt to obtain the reported VA treatment records dated in 1991 purporting to show a diagnosis of diabetes mellitus. 2. Then, schedule a VA examination(s) to assist in determining the current severity of the service-connected left knee disability and the etiology of the claimed diabetes mellitus, headaches, back disorder, left ankle disorder, right ankle disorder, and left hip disorder. The VA examiner should review the evidence associated with the record. All indicated tests and studies should be conducted. The VA examiner should test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for the right and left knee joints. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Is there any additional functional loss attributable to pain, weakness, fatigue, or incoordination associated with the left knee disability, to include any loss of range of motion due to pain or during flare-ups? The examiner should express the additional functional limitation in terms of the degree of additional limitation of motion due to weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should diagnose all current headache, back, left ankle, right ankle, and left hip disabilities and offer the following opinions with supporting rationale: A. Diabetes Mellitus Is it at least as likely as not (50 percent or greater probability) that the current diagnosed diabetes mellitus type 2 was incurred in or caused by active service? The VA examiner should note and discuss the relationship, if any, between the high cholesterol readings during service and diabetes. Is it at least as likely as not (50 percent or greater probability) that the diabetes mellitus was caused by the service-connected hypertension? Is it at least as likely as not (50 percent or greater probability) that the diabetes mellitus was aggravated (worsened in severity beyond a natural progression) by the service-connected hypertension? B. Headaches Is it at least as likely as not (50 percent or greater probability) that any currently diagnosed headache disorder was caused by the service-connected hypertension? Is it at least as likely as not (50 percent or greater probability) that any currently diagnosed headache disorder was aggravated (worsened in severity beyond a natural progression) by the service-connected hypertension? C. Back, Left Ankle, Right Ankle, and Left Hip Disorders Is it at least as likely as not (50 percent or greater probability) that any currently diagnosed back, ankle, or left hip disabilities were caused by the service-connected left knee disability? Is it at least as likely as not (50 percent or greater probability) that any currently diagnosed back, ankle, or left hip disabilities were aggravated (worsened in severity beyond a natural progression) by the service-connected left knee disability? 3. Then, readjudicate the issues remaining on appeal. If any part of the appeal remains denied, provide the Veteran and the representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs