Citation Nr: 19166151 Decision Date: 08/27/19 Archive Date: 08/27/19 DOCKET NO. 16-20 716 DATE: August 27, 2019 ORDER Entitlement to a separate disability rating of 10 percent, but no more, for left knee instability is granted on and after September 24, 2012, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a separate disability rating of 10 percent, but no more, for a left knee meniscectomy is granted on and after September 24, 2012, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a disability rating in excess of 10 percent for internal derangement of the left knee under Diagnostic Code 5260 is denied. Entitlement to a separate disability rating of 10 percent, but no more, for right knee instability is granted on and after May 2, 2016, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a disability rating in excess of 10 percent for right knee strain under Diagnostic Code 5260 is denied. New and material evidence having been received, the claim of service connection for bilateral hearing loss is reopened. New and material evidence having been received, the claim of service connection for tinnitus is reopened. Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran’s claim for service connection for bilateral hearing loss was denied in an October 2004 rating decision on the basis that he had not attended a scheduled VA examination. He expressed his willingness to attend an examination and the claim was denied again in an August 2006 rating decision on the basis that the evidence failed to establish a current disability or a nexus to service. He was notified of this decision, did not timely disagree with it or submit new and material evidence within one year of it, and it became final. 2. The Veteran’s request to reopen his claim for service connection for bilateral hearing loss was granted in a February 2013 rating decision, but the claim was denied on the merits on the basis that the evidence failed to establish a current disability. He was notified of this decision, did not timely disagree with it or submit new and material evidence within one year of it, and it became final. 3. Evidence received since the February 2013 rating decision raises a substantial possibility of substantiating the claim of service connection for bilateral hearing loss. 4. The Veteran’s claim for service connection for tinnitus was denied in an October 2004 rating decision on the basis that he had not attended a scheduled VA examination. He expressed his willingness to attend an examination and the claim was denied again in an August 2006 rating decision on the basis that the evidence failed to establish a nexus to service. He was notified of this decision, did not timely disagree with it or submit new and material evidence within one year of it, and it became final. 5. Evidence received since the August 2006 rating decision raises a substantial possibility of substantiating the claim of service connection for tinnitus. 6. The probative evidence of record is at least in equipoise as to whether the Veteran’s bilateral hearing loss is a result of service or etiologically related to in-service noise exposure. 7. The probative evidence of record is at least in equipoise as to whether the Veteran’s tinnitus is a result of service or etiologically related to in-service noise exposure. 8. The Veteran’s internal derangement of the left knee manifests as painful motion, slight lateral instability, and symptomatic removal of semilunar cartilage, but not moderate recurrent subluxation or lateral instability, ankylosis, limitation of flexion to 45 degrees, limitation of extension to 5 degrees, dislocated semilunar cartilage, or impairment of the tibia or fibula. 9. The Veteran’s right knee strain manifests as painful motion and slight lateral instability, but not moderate recurrent subluxation or lateral instability, ankylosis, limitation of flexion to 45 degrees, limitation of extension to 5 degrees, dislocated or removed semilunar cartilage, or impairment of the tibia or fibula. CONCLUSIONS OF LAW 1. The February 2013 decision is final with regard to the issue of service connection for bilateral hearing loss. New and material evidence sufficient to reopen the claim of service connection for bilateral hearing loss has been received. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). 2. The August 2006 decision is final with regard to the issue of service connection for tinnitus. New and material evidence sufficient to reopen the claim of service connection for tinnitus has been received. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 3. With resolution of reasonable doubt in the Veteran’s favor, the criteria for a grant of service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2017). 4. With resolution of reasonable doubt in the Veteran’s favor, the criteria for a grant of service connection for tinnitus have been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 5. With resolution of reasonable doubt in the Veteran’s favor, on and after September 24, 2012, the criteria for a separate rating of 10 percent, but no higher, for left knee instability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2017). 6. With resolution of reasonable doubt in the Veteran’s favor, on and after September 24, 2012, the criteria for a separate rating of 10 percent, but no higher, for left knee meniscectomy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259 (2017). 7. For the period on appeal, the criteria for a disability rating in excess of 10 percent for internal derangement of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2017). 8. With resolution of reasonable doubt in the Veteran’s favor, on and after May 2, 2016, the criteria for a separate rating of 10 percent, but no higher, for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 9. For the period on appeal, the criteria for a disability rating in excess of 10 percent for right knee strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from August 1977 to August 1980. The Veteran testified before the undersigned Veterans Law Judge during a March 2019 hearing. This matter is on appeal from February 2013, February 2016, and June 2016 rating decisions. The Board notes that, in the February 2016 rating decision, the Agency of Original Jurisdiction (AOJ) granted the Veteran’s request to reopen his claim for service connection for bilateral hearing loss and then denied it on the merits. The Board, however, must decide initially whether evidence to reopen a claim has been received without deference to any AOJ decision concerning reopening. See Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). Accordingly, the issues of reopening are reflected on the title page. The Board notes that the Veteran’s attorney, in the July 2017 substantive appeals (VA Form 9), sought to preserve for appeal any “failure to discharge the duty to assist.” However, neither the Veteran nor his attorney have raised any specific issue with the duty to notify or duty to assist, with the exception of a challenge to the adequacy of one of the Veteran’s VA audiological examinations. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Because the Board is granting service connection for both bilateral hearing loss and tinnitus, the Veteran’s challenge to the adequacy of that examination is moot. The Board also notes that the Veteran’s attorney has contended that a July 2017 rating decision contained clear and unmistakable error (CUE). Specifically, the Veteran’s attorney contends that the issue of entitlement to an increased rating for the Veteran’s service-connected left knee disability was raised in a May 2017 claim and that the AOJ erred by not including this claim in its July 2017 rating decision. The Veteran’s attorney cites Deshotel v. Nicholson, 457 F.3d 1258, 1261 (Fed. Cir. 2006) for the proposition that this was an implicit denial of the Veteran’s claim. In May 2019, the AOJ determined that, because the rating for the Veteran’s service-connected left knee disability was already on appeal, this contention was before the Board. In order to find CUE in a prior adjudication, it must be determined (1) that either the correct facts known at the time or constructively known at the time were not before the adjudicator or the law then in effect was incorrectly applied, (2) that an error occurred based on the record and the law that existed at the time the prior decision was made, and (3) that, had the error not been made, the outcome would have been manifestly different. Grover v. West, 12 Vet. App. 109, 112 (1999). CUE is the kind of error of fact or 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. Fugo v. Brown, 6 Vet. App. 40, 43 (1997). Even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Id. at 43-44. VA received a claim from the Veteran for an increased rating for his service-connected left knee disability in September 2012. The AOJ denied that claim in a February 2013 rating decision. The Veteran submitted a Notice of Disagreement (NOD) with that decision in March 2013, the AOJ issued a Statement of the Case (SOC) in March 2016, and the Veteran submitted a substantive appeal (VA Form 9) in April 2016. That appeal is now before the Board. “A claim for benefits, whether formal or informal, remains pending until it is finally adjudicated.” Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009). A claim is “finally adjudicated” when appellate review is completed. 38 C.F.R. § 3.160(d)(2) (2017). “If a claim is left pending, it can be addressed when a subsequent claim for the same disability is adjudicated by the DVA, in which case the effective date for any award of benefits will be the effective date applicable to the original claim.” Adams, 568 F.3d at 960. Therefore, as long as the September 2012 claim remains on appeal, the period on appeal is tied to the date of that claim and any subsequent claim for an increased rating VA receives prior to a final adjudication of the appeal is redundant. Even if it were error to decline to adjudicate a redundant claim, the left knee rating would have been before the Board for the same period whether the redundant claim was adjudicated or not. Therefore, it is not absolutely clear that the result would have been any different if the redundant claim had been adjudicated. For that reason, the Veteran’s assertion of CUE in the July 2017 rating decision must be denied. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2017). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. “Staged” ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claim for a higher initial evaluation for the Veteran’s right knee disability, the Board has considered all evidence of severity since the effective date for the award of service connection for that claim. Fenderson v. West, 12 Vet. App. 119 (1999). With regard to the left knee claim, when entitlement to compensation has already been established and an increased rating is at issue, the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. at 509; see also 38 U.S.C. § 5110(b)(2) (2012); 38 C.F.R. § 3.400(o)(2) (2017). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 1. Internal Derangement of the Left Knee The Veteran contends that his internal derangement of the left knee warrants a higher rating than that currently assigned. It is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260, with a 10 percent rating on and after August 31, 1980. Diagnostic Code 5260 pertains to limitation of leg flexion. VA received the Veteran’s claim for an increased rating on September 24, 2012. In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. Additionally, “pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system.” Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Pain in a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id.; 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.59, painful joints are entitled to at least the minimum compensable rating for the joint. In this case, at least the minimum compensable ratings have been in effect during the entire appeal period. Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Limitation of flexion of the leg is evaluated as follows: flexion limited to 15 degrees (30 percent); flexion limited to 30 degrees (20 percent); flexion limited to 45 degrees (10 percent); and flexion limited to 60 degrees (noncompensable). 38 C.F.R. § 4.71a, Diagnostic Code 5260. For VA purposes, a normal range of knee motion is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. There are additional Diagnostic Codes that apply to knee disorders. 38 C.F.R. § 4.45(f) (2017). 38 C.F.R. § 4.71a, Diagnostic Code 5256 (2017) pertains to ankylosis of the knee. Recurrent subluxation or lateral instability of the knee is evaluated as follows: severe (30 percent); moderate (20 percent); and slight (10 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5257. Meniscal conditions are evaluated as follows: dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint (20 percent); and symptomatic removal of semilunar cartilage (10 percent). 38 C.F.R. § 4.71a, Diagnostic Codes 5258 and 5259 (2017). Limitation of extension of the leg is evaluated as follows: extension limited to 45 degrees (50 percent); extension limited to 30 degrees (40 percent); extension limited to 20 degrees (30 percent); extension limited to 15 degrees (20 percent); extension limited to 10 degrees (10 percent); and extension limited to 5 degrees (noncompensable). 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2017). Impairment of the tibia and fibula is evaluated as follows: nonunion with loose motion, requiring a brace (40 percent); malunion with marked knee or ankle disability (30 percent); malunion with moderate knee or ankle disability (20 percent); and malunion with slight knee or ankle disability (10 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2017). Degenerative arthritis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2017) which provides, when limitation of motion is noncompensable under the appropriate Diagnostic Code, for a 10 percent rating for each major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. For rating purposes, the knee is considered a major joint. 38 C.F.R. § 4.45. Traumatic arthritis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2017), which provides for rating as degenerative arthritis. As the Veteran is already in receipt of a 10 percent rating based on painful motion throughout the period on appeal, further discussion of Diagnostic Codes 5003 and 5010 is not warranted. The Veteran was afforded a VA examination in December 2012. The examiner diagnosed degenerative joint disease of the left knee. The Veteran reported left knee swelling with pain with any activities and aching in cold weather. He also reported that he had to keep his knee moving approximately every five minutes to prevent stiffening. He did not report any flare ups. On examination, range of motion was reported as full extension to 140 or more degrees of flexion, with objective evidence of painful motion at the end of the range of flexion and either no such evidence on extension or only such evidence at the end of the range of extension. There was no additional loss of range on repetition. There was no functional impairment due to DeLuca factors. There was no tenderness or pain to palpation for the joint line or soft tissues. There was no reduction in muscle strength. On examination, there was no anterior, posterior, medial, or lateral instability. There was no history of recurrent subluxation or lateral instability. There was no tibial or fibular impairment. There was a history of a meniscal tear and a left meniscectomy in September 1979, but with no residual signs or symptoms. The Veteran did not report regularly using any assistive devices. Radiographic examination of the left knee was unremarkable. The examiner found that the Veteran’s left knee disability would have no impact on his ability to work. The examiner added that “objective findings do not correlate with subjective complaints” but did not elaborate on this statement. The Veteran has submitted a March 2016 report by a private examiner, who noted the Veteran’s report of constant stabbing pain in his left knee, increased with prolonged standing, walking, twisting, turning and going up and down stairs. The Veteran also reported inability to run, jump, jog or perform any impact activities and that his knee constantly locked, caught, and gave way. The examiner noted that the Veteran’s 1979 meniscectomy removed a “significant portion of his lateral meniscus.” On examination, active range of motion was reported as 0 degrees of extension to 121 degrees of flexion. There was tenderness to palpation over the medial and lateral joint lines. The knee was stable to varus and valgus stressing and anterior posterior drawer. The examiner also noted “Positive McMurrays” and that there were “no signs of symptom magnification or malingering.” The McMurray test is for a torn meniscus. Dorland’s Illustrated Medical Dictionary, 1894 (32nd Ed. 2012). The Veteran was afforded an additional VA examination in June 2016. Although the primary focus of the examination was right knee symptoms, the Veteran reported flare ups of swelling, pain, numbness, and tingling. On examination, range of motion was reported as 0 degrees of extension to 140 degrees of flexion. There was pain on flexion but it did not cause functional loss. There was evidence of pain with weight bearing. There was no objective evidence of localized tenderness, pain on palpation, or crepitus. There was no additional loss of motion on repetition. The examiner found that pain would significantly limit functionality with repeated use over time, but not during flare ups. Disturbance of locomotion was an additional factor contributing to disability. There was no muscle atrophy or reduction in muscle strength. There was no ankylosis or history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was normal for anterior, posterior, and medial instability, but found 0-5 millimeters of lateral instability. There was no tibial or fibular impairment. There was a history of a meniscal condition with residual frequent episodes of joint effusion. The Veteran did not report using any assistive devices. During a June 2016 VA treatment appointment, the Veteran was unable to move his left knee “enough to stress it.” The Veteran was afforded an additional VA examination in June 2017. Although the primary focus of the examination was again on right knee symptoms, the Veteran denied any left knee flare ups. On examination, range of motion was reported as 0 degrees of extension to 140 degrees of flexion. There was no pain noted on examination. There was no objective evidence of localized tenderness, pain on palpation, or crepitus. There was no additional loss of motion on repetition. The examiner found that pain, weakness, fatigability or incoordination would not significantly limit functionality with repeated use over time. There were no additional factors contributing to disability. There was no muscle atrophy or reduction in muscle strength. There was no ankylosis or history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was normal for anterior, posterior, medial and lateral instability. There was no tibial or fibular impairment. The examiner erroneously found no history of a meniscal condition. The Veteran did not report using any assistive devices. There was no evidence of pain on passive range of motion testing or non-weight bearing testing. A June 2017 VA treatment record notes that the Veteran was seeking replacement bilateral knee braces and that the treatment provider customized the current ones to fit better in the interim. A July 2017 VA treatment record notes that the Veteran was fitted for his new knee braces. A May 2018 VA treatment record notes the Veteran’s report of bilateral knee pain and continued use of bilateral knee braces in addition to the left knee locking and giving way. A July 2018 MRI of the Veteran’s left knee noted chronic complete ACL disruption, a diminutive lateral meniscus consistent with a history of prior partial meniscectomy, suspicion of a recurrent tear, and mild degenerative joint disease including chondromalacia. Based on the evidence described above, the Board finds that, affording the Veteran the benefit of the doubt, his left knee instability warrants a separate 10 percent rating throughout the period on appeal. Stability testing during the period on appeal has generally found no instability but the Veteran has repeatedly reported that his left knee gives way and the June 2016 VA examiner found a low degree of lateral instability. Diagnostic Code 5257 does not require objective medical evidence of lateral instability for a rating to be assigned. See English v. Wilkie, 30 Vet. App. 347 (2018). Because the Veteran has competently and credibly reported left knee instability and one VA examination found a low degree of lateral instability, the Board finds that a separate 10 percent rating is warranted for slight lateral instability. The Veteran’s knee instability is not more accurately described as moderate. VA examiners have, with one exception, found that the left knee joint is normal on all stability tests. The Board finds that knee instability that causes functional impairment but is only intermittently detectable on examination and then only to a low degree is best characterized as slight. Outside of records pertaining to knee braces, the medical records contain no description as to the frequency or severity of the Veteran’s instability, nor has he provided a lay description. “The evaluation of the same disability under various diagnoses is to be avoided.” 38 C.F.R. § 4.14 (2017). However, the United States Court of Appeals for Veterans Claims has concluded that evaluation of a knee disability for limitation of motion does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under Diagnostic Code 5259; the question is whether the symptoms of the Veteran’s knee disability have already been compensated under other Diagnostic Codes such that separate evaluation under Diagnostic Code 5259 is not warranted. Lyles v. Shulkin, 29 Vet. App. 107, 116 (2017). Based on the evidence described above, the Board finds that, affording the Veteran the benefit of the doubt, his left knee meniscectomy warrants a separate 10 percent rating throughout the period on appeal. The June 2016 VA examiner found that the Veteran’s meniscectomy had residual symptoms of frequent episodes of joint effusion. As the Veteran’s meniscectomy has caused residual symptoms other than limitation of motion, painful motion, or instability, the Board finds that the current 10 percent disability ratings under Diagnostic Codes 5257 and 5260 do not compensate him for those residuals and that a separate 10 percent rating is warranted for symptomatic removal of semilunar cartilage. Diagnostic Code 5258 is not more appropriate for the Veteran’s meniscus symptoms because the VA examiners have not found that the Veteran had frequent episodes of joint locking. Additionally, the examiners did not find that the Veteran had pain in his knee specifically due to his meniscus condition, as opposed to his joint condition. The preponderance of the evidence described above also shows that the Veteran’s internal derangement of the left knee does not warrant a rating in excess of 10 percent under Diagnostic Code 5260 during the period on appeal. No examiner or treatment provider has found that the Veteran’s left leg flexion has been limited to less than 121 degrees during the period on appeal. A 20 percent rating under Diagnostic Code 5260 requires limitation to 30 degrees. In addition, no examiner or treatment provider has found that the Veteran’s left leg extension has been limited beyond the normal range; a separate 10 percent rating under Diagnostic Code 5261 requires limitation to 10 degrees. The preponderance of the evidence also shows that the Veteran’s left knee disability has not been manifested by ankylosis, dislocation of semilunar cartilage, or impairment of the tibia or fibula. The Board has considered the Veteran’s lay statements. The Veteran is competent to report his own observations with regard to the symptoms of his left knee disability and his descriptions are credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board has accepted those statements as the partial basis for granting a separate 10 percent rating for left knee instability. However, nothing in the Veteran’s lay statements provides a basis for assigning a higher rating than those assigned herein under any Diagnostic Code pertaining to musculoskeletal disabilities of the knee. In addition, the Board considered whether a higher rating is warranted under the regulations relating to additional functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45. The record contains no probative evidence that these factors have caused functional limitation equivalent to the criteria for a higher rating. The Board notes the June 2016 VA examiner’s finding that pain would cause unquantifiable but significant limits with repeated use over time but, given that the examiner found 140 degrees of flexion and a 20 percent rating requires limitation to 30 degrees of flexion, the Board finds that it is less likely than not that the examiner would have refrained from quantifying the impact of pain if pain limited range of motion by nearly 80 percent to 30 degrees. Because the Board considered the applicable ratings under every Diagnostic Code pertaining to musculoskeletal disabilities of the knee, the Board finds that there are no other potentially applicable Diagnostic Codes by which a higher rating can be assigned. 2. Right Knee Strain The Veteran contends that his right knee strain warrants a higher rating than that currently assigned. It is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260, with a 10 percent rating on and after May 2, 2016. Diagnostic Code 5260 pertains to limitation of leg flexion. The full period of service connection is on appeal. As the Veteran is already in receipt of a 10 percent rating based on painful motion throughout the period on appeal, further discussion of Diagnostic Codes 5003 and 5010 is not warranted. The Veteran has submitted a March 2016 report by a private examiner, who noted the Veteran’s report of constant aching in his right knee, increased with twisting, turning, prolonged sitting, prolonged standing, and going up and down stairs. On examination, active range of motion was reported as 0 degrees of extension to 116 degrees of flexion. Crepitus was noted with ranging. There was tenderness to palpation over the medial and lateral joint lines. The knee was stable to varus and valgus stressing and anterior posterior drawer. The examiner also noted “Positive McMurrays” and that there were “no signs of symptom magnification or malingering.” The Veteran was afforded a VA examination in June 2016. The examiner diagnosed right knee strain. The Veteran reported pain with sitting or standing. He also reported flare ups of pain, swelling, stiffness and occasional locking up. He characterized his functional impairment as inability to sit or stand for a period of time and a need to use a knee brace. On examination, range of motion was reported as 0 degrees of extension to 140 degrees of flexion. There was pain on flexion but it did not cause functional loss. There was evidence of pain with weight bearing. There was no objective evidence of localized tenderness, pain on palpation, or crepitus. There was no additional loss of motion on repetition. The examiner found that pain, weakness, fatigability or incoordination would not significantly limit functionality with repeated use over time or during flare ups. There were no additional factors contributing to disability. There was no muscle atrophy or reduction in muscle strength. There was no ankylosis or history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was normal for anterior, posterior, medial, and lateral instability. There was no tibial or fibular impairment. There was no history of a meniscal condition. The examiner noted that the Veteran did not report using any assistive devices despite noting earlier in the examination report that the Veteran reported using a knee brace. The examiner found that the Veteran’s knee disability would have no impact on his ability to work. During a June 2016 VA treatment appointment, the Veteran reported increasing pain in his right knee for the past 18 months, as well as some crepitus, popping, and occasional locking up. On examination, there was some anterior laxity, but the treatment provider did not quantify the extent of it. There was consistent popping in the right knee with motion and significant pain with each pop. The Veteran was afforded an additional VA examination in June 2017. The examiner diagnosed right knee strain. The Veteran reported stiffness and stabbing pain when standing. He also reported flare ups of pain, swelling, stiffness, and locking. He characterized his functional impairment as inability to sit for prolonged periods, weakness, and inability to walk or stand due to pain, swelling, and stiffness. On examination, range of motion was reported as 0 degrees of extension to 80 degrees of flexion. There was pain on flexion and extension and it caused functional loss. There was pain with weight bearing. There was no objective evidence of localized tenderness or pain on palpation, but there was objective evidence of crepitus. There was additional loss of motion on repetition due to pain and lack of endurance, with flexion limited to 75 degrees and no limitation to extension. The examiner found that pain and lack of endurance would significantly limit functionality with repeated use over time, limiting flexion to 70 degrees but not limiting extension. The examiner also found that pain and lack of endurance would significantly limit functionality with flare ups, and was able to quantify this in degrees: flare ups would limit flexion to 65 degrees but would not limit extension. Decreased movement, disturbance of locomotion, and interference with sitting and standing were additional factors contributing to disability. There was no muscle atrophy or reduction in muscle strength. There was no ankylosis or history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was normal for anterior, posterior, medial and lateral instability. There was no tibial or fibular impairment. There was no history of a meniscal condition. The Veteran did not report using any assistive devices. The examiner found that the Veteran’s right knee disability would affect his ability to work by causing difficulty with lifting, walking, prolonged sitting, squatting, kneeling, pushing, pulling, and lifting. There was objective evidence of pain on passive range of motion testing and non-weight bearing testing. A June 2017 VA treatment record notes that the Veteran was seeking replacement bilateral knee braces and that the treatment provider customized the current ones to fit better in the interim. A July 2017 VA treatment record notes that the Veteran was fitted for his new knee braces. A May 2018 VA treatment record notes the Veteran’s report of bilateral knee pain and continued use of bilateral knee braces and the treatment provider noted right knee arthritis. Based on the evidence described above, the Board finds that, affording the Veteran the benefit of the doubt, his right knee instability warrants a separate 10 percent rating throughout the period on appeal. Stability testing during the period on appeal has generally found no instability but a VA treatment provider found an unspecified degree of anterior laxity during a June 2016 appointment. Because a VA treatment provider found anterior instability, the Board finds that a separate 10 percent rating is warranted for slight instability. The Veteran’s knee instability is not more accurately described as moderate. VA and private examiners have consistently found that the right knee joint is stable and the Veteran has not reported right knee instability. The Board finds that knee instability that is only rarely detectable on examination and is not reported by the Veteran as a symptom is best characterized as slight. Outside of records pertaining to knee braces, the medical records contain no description as to the frequency or severity of the Veteran’s instability, nor has he provided a lay description. The preponderance of the evidence described above also shows that the Veteran’s right knee strain does not warrant a rating in excess of 10 percent under Diagnostic Code 5260 during the period on appeal. No examiner or treatment provider has found that the Veteran’s right leg flexion, even after incorporating the effects of repeated use over time or flare ups, has been limited to less than 65 degrees during the period on appeal. A 20 percent rating under Diagnostic Code 5260 requires limitation to 30 degrees. In addition, no examiner or treatment provider has found that the Veteran’s right leg extension has been limited beyond the normal range; a 20 percent rating under Diagnostic Code 5261 requires limitation to 15 degrees. The Board notes some indication of meniscal impairment in the Veteran’s right knee, but there is nothing in the record to indicate dislocation or removal of semilunar cartilage in the right knee. The preponderance of the evidence also shows that the Veteran’s right knee disability has not been manifested by ankylosis or impairment of the tibia or fibula. The Board has considered the Veteran’s lay statements. The Veteran is competent to report his own observations with regard to the symptoms of his right knee disability and his descriptions are credible. See Jandreau, 492 F.3d at 1376-77. However, nothing in the Veteran’s lay statements provides a basis for assigning a higher rating than those assigned herein under any Diagnostic Code pertaining to musculoskeletal disabilities of the knee. In addition, the Board considered whether a higher rating is warranted under the regulations relating to additional functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45. The record contains no probative evidence that these factors have caused functional limitation equivalent to the criteria for a higher rating. Because the Board considered the applicable ratings under every Diagnostic Code pertaining to musculoskeletal disabilities of the knee, the Board finds that there are no other potentially applicable Diagnostic Codes by which a higher rating can be assigned. New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence is neither cumulative nor redundant of evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). However, evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343, 1347 (Fed. Cir. 2000). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is generally “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Until the Veteran meets his threshold burden of submitting new and material evidence sufficient to reopen his claim of entitlement to service connection, the benefit of the doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). 3. Bilateral Hearing Loss – New and Material Evidence The Veteran contends that he has bilateral hearing loss that is etiologically related to his active duty service. The Veteran was denied service connection for bilateral hearing loss in an October 2004 rating decision on the basis that he had not attended a scheduled VA examination. In November 2004, he expressed his willingness to attend an examination and the claim was denied again in an August 2006 rating decision. He did not submit a Notice of Disagreement or submit new and material evidence within one year of the August 2006 rating decision. Therefore, the August 2006 rating decision is final. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 20.302, 20.1103. The basis for the August 2006 denial was a lack of evidence of a current disability or a nexus to service. The Veteran’s request to reopen his claim for service connection for bilateral hearing loss was granted, but then denied on the merits, in a February 2013 rating decision. He submitted a Notice of Disagreement to the rating decision in March 2013 but specifically stated that he was appealing only his left knee disability and tinnitus claims. He did not submit new and material evidence within one year of the rating decision. Therefore, the February 2013 rating decision is final. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 20.302, 20.1103. The basis for the February 2013 denial was a lack of evidence of a current disability. The question is thus whether the Veteran has submitted or VA has otherwise received evidence that was not before the adjudicator in February 2013, that is neither redundant nor cumulative, and that raises a reasonable possibility of substantiating a claim that the Veteran currently has bilateral hearing loss as a result of active duty service. The evidence that was of record at the time of the February 2013 rating decision included the Veteran’s service treatment records and VA and private examination reports. Since the February 2013 rating decision, the Veteran has been afforded two additional VA examinations and has provided three private examination reports. A February 2017 private examiner diagnosed bilateral hearing loss and opined that it is at least as likely as not that there is a nexus between the Veteran’s current bilateral hearing loss and noise exposure during his active duty service. As the record now contains more evidence pertinent to the issue of a current disability and nexus to service than it did in February 2013, the Board finds that new and material evidence has been received which pertains to previously unestablished facts necessary to support the claim. As this evidence raises a reasonable possibility of substantiating the claim, satisfying the criteria of 38 C.F.R. § 3.156(a) for new and material evidence, the claim is reopened. 4. Tinnitus – New and Material Evidence The Veteran contends that he has bilateral hearing loss that is etiologically related to his active duty service. The Veteran was denied service connection for tinnitus in an October 2004 rating decision on the basis that he had not attended a scheduled VA examination. In November 2004, he expressed his willingness to attend an examination and the claim was denied again in an August 2006 rating decision. He did not submit a Notice of Disagreement or submit new and material evidence within one year of the August 2006 rating decision. Therefore, the August 2006 rating decision is final. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 20.302, 20.1103. The basis for the August 2006 denial was a lack of evidence of a nexus to service. The question is thus whether the Veteran has submitted or VA has otherwise received evidence that was not before the adjudicator in August 2006, that is neither redundant nor cumulative, and that raises a reasonable possibility of substantiating a claim that the Veteran currently has tinnitus as a result of active duty service. The evidence that was of record at the time of the August 2006 rating decision included the Veteran’s service treatment records and VA and private examination reports. Since the August 2006 rating decision, the Veteran has been afforded three additional VA examinations and has provided three private examination reports. A February 2017 private examiner opined that it is at least as likely as not that there is a nexus between the Veteran’s current tinnitus and noise exposure during his active duty service. As the record now contains more evidence pertinent to the issue of nexus to service than it did in August 2006, the Board finds that new and material evidence has been received which pertains to previously unestablished facts necessary to support the claim. As this evidence raises a reasonable possibility of substantiating the claim, satisfying the criteria of 38 C.F.R. § 3.156(a) for new and material evidence, the claim is reopened. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The presumption of service connection applies to anyone who served on active duty for 90 days of active, continuous service. 38 C.F.R. § 3.307(a)(1) (2017); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Post-service development of arthritis or an “organic disease of the nervous system” to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Hearing loss and tinnitus are “organic diseases of the nervous system” and are subject to presumptive service connection under 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258 (2015). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 5. Bilateral Hearing Loss – Service Connection The Veteran contends that he has bilateral hearing loss that was caused by noise exposure during active duty service. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of those frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. During the Veteran’s June 1977 entrance examination, the examiner found his ears to be normal. The Veteran denied any history of ear trouble or hearing loss. Pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 10 5 10 LEFT 10 10 5 5 10 The Veteran’s service personnel records indicate that he was a cannon crewman during his active duty service. Although the Veteran’s service treatment records appear to be complete, they do not include a separation examination. His hearing thresholds at separation are therefore unknown. The Veteran has submitted a September 2003 report by a private examiner. Pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 50 50 60 LEFT 40 45 55 45 60 Speech recognition thresholds were 88 percent in the right ear and 96 percent in the left ear. Because it is not clear whether the examiner used a word test other than the Maryland CNC test, it is not clear whether the speech recognition scores are valid for rating purposes. The Veteran was afforded a VA examination in June 2006. He reported that he did not notice hearing loss at the time of his separation from service but was told by others that he was not hearing what they said. He denied any post-service recreational or occupational noise exposure and reported that he worked for the United States Postal Service. Pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 10 15 15 LEFT 15 15 15 20 15 Speech recognition thresholds were 94 percent in the right ear and 96 percent in the left ear. The examiner found that the Veteran’s hearing was clinically normal bilaterally. The Veteran was afforded an additional VA examination in January 2013. Pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 10 10 10 LEFT 10 15 15 20 15 Speech recognition thresholds were 96 percent in the right ear and 96 percent in the left ear. The examiner found that the Veteran’s hearing was clinically normal bilaterally and opined that the higher level of hearing impairment found in the September 2003 private examination was a result of “external ear canal collapse due to headphone pressure” because such collapses “act like a set of earplugs giving the impression of a hearing loss when, in fact, none exists.” The Veteran has also submitted a November 2015 report by a private examiner. Pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 25 25 25 LEFT 20 20 20 20 25 Speech recognition thresholds using the Maryland CNC Test were 76 percent in the right ear and 76 percent in the left ear. The examiner diagnosed mild bilateral high frequency sensorineural hearing loss but did not opine as to its etiology. The Veteran was afforded an additional VA examination in February 2016. Pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 25 25 20 LEFT 20 25 25 20 25 Speech recognition thresholds were 96 percent in the right ear and 100 percent in the left ear. The examiner diagnosed sensorineural hearing loss but opined that it was less likely than not that it was related to noise exposure during active duty service. The examiner’s rationale was based on a 2006 Institute of Medicine study which, the examiner said, “stated that there was no scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after such noise exposure.” The Veteran has also submitted a March 2016 medical opinion by a private examiner, who opined that the Veteran’s hearing loss was more likely than not related to noise exposure during active duty service. The examiner noted the Veteran’s service as a cannon crewman and that he “rode in tanks and shot artillery shells.” The Veteran has also submitted a February 2017 report by a private examiner. The Veteran reported that his job duties with the Postal Service included four years as a letter carrier and then 30 years as a senior manager. Pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 25 15 LEFT 15 20 20 25 20 Speech recognition thresholds using the Maryland CNC Test were 88 percent in the right ear and 88 percent in the left ear. The examiner diagnosed bilateral hearing loss and opined that it was at least as likely as not caused by noise exposure during active duty service. The examiner’s rationale was that the types of noise to which the Veteran was exposed during active duty service were “well documented to result in acoustic trauma” and that there was “no occupational noise exposure except for military.” The Veteran was afforded an additional VA examination in May 2017. The examiner expressed inability to obtain valid pure tone thresholds at any frequency. As noted above, the Veteran has raised concerns as to the adequacy of this examination but, because the Board is granting the Veteran’s claim, those concerns are moot. A June 2018 VA treatment appointment included an audiogram, with pure tone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 15 15 LEFT 10 10 15 20 25 Speech recognition thresholds were 92 percent in the right ear and 100 percent in the left ear. The medical evidence of record does not show pure tone thresholds that meet the requirements of 38 C.F.R. § 3.385 during the period on appeal, but it does show speech recognition thresholds using the Maryland CNC Test that meet those requirements. Given the Veteran’s service as a cannon crewman, his reports of noise exposure during active duty service are credible. The January 2013 VA examiner and the February 2017 private examiner provided equally compelling rationales. The Board finds that the evidence is in equipoise. In light of the totality of the circumstances, and after resolving all reasonable doubt in his favor, the evidence of record supports a finding that it is at least as likely as not that the Veteran’s bilateral hearing loss was due to acoustic injury during active duty service. Accordingly, the Board finds that granting service connection for bilateral hearing loss is the decision that is the most consistent with VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. § 3.303(a). 6. Tinnitus – Service Connection The Veteran contends that he has tinnitus that was caused by noise exposure during active duty service. During the Veteran’s June 1977 entrance examination, the examiner found his ears to be normal. The Veteran denied any history of ear trouble. As stated above, the Veteran’s service personnel records indicate that he was a cannon crewman during his active duty service and, although the Veteran’s service treatment records appear to be complete, they do not include a separation examination. The Veteran has submitted a September 2003 report by a private examiner. At that time, the Veteran reported intermittent tinnitus. The Veteran was afforded a VA examination in June 2006. He reported constant bilateral tinnitus with onset seven to eight years prior to the examination. The examiner opined that the Veteran’s tinnitus was not a result of acoustic trauma in service, based on this report of more recent onset. The Veteran was afforded an additional VA examination in January 2013. The Veteran again reported onset of tinnitus seven to eight years prior to the examination, despite this examination being seven years after the previous one. The examiner opined that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure because “[m]edical knowledge does not support the theory of delayed onset of tinnitus.” The examiner opined that the Veteran’s tinnitus was more likely than not to be age-related. The Veteran has also submitted a November 2015 report by a private examiner. The examiner noted the Veteran’s report of constant bilateral tinnitus but did not opine as to its etiology. The Veteran was afforded an additional VA examination in February 2016. The Veteran reported constant bilateral tinnitus that he first noticed after being around gunfire during his active duty service. The examiner opined that the Veteran’s tinnitus was less likely than not because it was more likely related to hearing loss, which the examiner found was not related to noise exposure during active duty service. The Veteran has also submitted a March 2016 medical opinion by a private examiner, who opined that the Veteran’s tinnitus was more likely than not related to noise exposure during active duty service. The examiner noted the Veteran’s service as a cannon crewman and that he “rode in tanks and shot artillery shells.” The Veteran has also submitted a February 2017 report by a private examiner. The Veteran clarified that his tinnitus had its onset during active duty service and was intermittent at first but became constant over time. The examiner diagnosed tinnitus and opined that it was at least as likely as not caused by noise exposure during active duty service. The examiner’s rationale was that the types of noise to which the Veteran was exposed during active duty service were “well documented to result in acoustic trauma,” that tinnitus is “one of the most common, and often the first, symptom of acoustic trauma” and that there was “no occupational noise exposure except for military.” The Veteran was afforded an additional VA examination in May 2017. The examiner opined that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure because its onset was after separation from active duty service. The medical evidence of record includes a diagnosis of tinnitus. Given the Veteran’s service as a cannon crewman, his reports of noise exposure during active duty service are credible. The January 2013 VA examiner and the February 2017 private examiner provided equally compelling rationales and the February 2016 VA examiner opined that the Veteran’s tinnitus was related to his hearing loss, which is now service-connected. The other VA examiners’ opinions were based on later reports of onset and the Veteran has clarified that those reports referred to the point at which his intermittent tinnitus, which had its onset during active duty service, became constant. In light of the totality of the circumstances, and after resolving all reasonable doubt in his favor, the evidence of record supports a finding that it is at least as likely as not that the Veteran’s tinnitus was due to acoustic injury during active duty service. Accordingly, the Board finds that granting service connection for tinnitus is the decision that is the most consistent with VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. § 3.303(a). D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ryan Frank, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.