Citation Nr: 0204538 Decision Date: 05/15/02 Archive Date: 05/24/02 DOCKET NO. 00 - 04 114A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES Entitlement to service connection for allergic rhinitis. Entitlement to service connection for a disability manifested by sneezing, sinus discomfort, loss of smell, a metallic taste, and nose and throat itching claimed as an undiagnosed illness. Entitlement to an initial rating in excess of 10 percent for a fungus infection of the neck, groin, legs, feet, and toenails. Entitlement to a total disability rating based on unemployability due to service connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Frank L. Christian, Counsel INTRODUCTION The veteran served on active duty with the United States Air Force from October 12, 1978, to May 31, 1979, and served with the Louisiana Army National Guard from June 29, 1989, to July 1, 1993, including active service from November 22, 1990, to March 27, 1991, in the Southwest Asia theater of operations during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in January and February 2000 and January 2001 from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The rating decision of January 2000, in pertinent part, denied entitlement to a total disability rating based on individual unemployability due to service-connected disability. The rating decision in February 2000, in pertinent part, denied service connection for allergic rhinitis. The rating decision in January 2001 granted service connection for a fungus infection of the neck, groin, legs, feet and toenails, and assigned a 10 percent evaluation, effective October 22, 1999, and denied service connection for a disability manifested by sneezing, sinus discomfort, loss of smell, a metallic taste, and nose and throat itching, claimed as due to an undiagnosed illness. In a document received in June 2001, the veteran expressed an intent to reopen his claim for service connection for a back disability; sought a rating in excess of 50 percent for his service-connected PTSD; and sought an effective date prior to June 30, 1999, for the grant of service connection for anxiety disorder with major depressive disorder, now rated as PTSD. These matters have not been developed for appellate consideration and are referred to the RO for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the instant appeal has been obtained by the RO, and VA's duty of notification to the claimant of required information and evidence and its duty to assist him in obtaining all evidence necessary to substantiate his claims have been fully met. 2. A rating decision of October 1998 denied service connection for an allergy condition; the veteran failed to perfect an appeal, and that decision became final after one year. 3. In February 2000, the veteran sought to reopen his claim for service connection for allergic rhinitis by submitting additional evidence. 4. The additional evidence submitted to reopen the veteran's claim for service connection for allergic rhinitis includes evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 5. Each of the disabilities at issue has an established current medical diagnosis. 6. Allergic rhinitis was not demonstrated or diagnosed during either of the veteran's periods of active service or at any time prior to May 1992; and no competent medical evidence has been submitted which links or relates that condition to either period of active service. 7. A disability manifested by sneezing, sinus discomfort, loss of smell, a metallic taste, and nose and throat itching, claimed as an undiagnosed illness, has been diagnosed by private allergists and other private and VA physicians as allergic rhinitis. 8. The veteran's service-connected fungus infection of the neck, buttocks, groin, leg, feet, and toenails is currently manifested by no more than a mild, intermittent skin rash involving areas of the neck, buttocks, groin, legs, and feet, diagnosed as tinea corporis, tinea cruris, tinea pedis, and dermatophytosis, positive potassium hydroxide (KOH) and culture testing, and thickened and discolored toenails, with subungual debris, diagnosed as onychomycosis, without objective clinical findings of exudation or constant itching, extensive lesions, scarring, marked disfigurement; ulceration or extensive exfoliation or crusting, systemic or nervous manifestations, or exceptionally repugnant manifestations. 9. Service connection is in effect for PTSD, evaluated as 50 percent disabling, and for a fungus infection of the neck, groin, leg, feet, and toenails, currently evaluated as 10 percent disabling; the veteran's combined service-connected disability rating is 60 percent, effective September 1999. 10. The veteran's service-connected PTSD and fungus infection of the neck, groin, legs, feet, and toenails are not manifested by unusual or exceptional factors such as marked interference with employment or frequent periods of hospitalization such as to render inapplicable the regular schedular standards. 11. The veteran was born on September [redacted], 1961; has a college education and is currently attending law school; and has occupational experience as a truck driver and dispatcher, and long-term experience as a law enforcement officer. 12. The veteran has not been shown to be unable to secure or follow a substantially gainful occupation, consistent with his education and occupational experience, as a result of service-connected disabilities. CONCLUSIONS OF LAW 1. New and material evidence having been submitted, the claim for service connection for allergic rhinitis is reopened. 38 U.S.C.A. §§ 5107, 5108 (West 1991 & Supp. 2001); 38 C.F.R. § 3.156 (2001). 2. As each of the disabilities at issue has an established current medical diagnosis, none constitutes an undiagnosed illness due to the veteran's Persian Gulf War service. 38 U.S.C.A. §§ 1117 (West Supp. 2001) (as amended by Veterans Education and Benefits Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (Dec. 27, 2001). 3. Allergic rhinitis was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 101(24), 1110, 1131, 5103, 5103A, 5107 (West Supp. 2001). 4. A disability manifested by sneezing, sinus discomfort, loss of smell, a metallic taste, and nose and throat itching, claimed as an undiagnosed illness and diagnosed as allergic rhinitis, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West Supp. 2001). 5. The criteria for an initial rating in excess of 10 percent for a fungus infection of the neck, groin, leg, feet, and toenails are not met. 38 U.S.C.A. § 1155 (West 1991), 38 C.F.R. § 3.321, Part 4, § 4.118, Diagnostic Codes 7806, 7813 (2001). 6. The criteria for a total disability rating based on unemployability due to service connected disability are not met. 38 C.F.R. §§ 3.340, 3.341, and Part 4, § 4.15, 4.16, 4.18, 4.19 (2001). 7. The criteria for an increased disability rating on an extraschedular basis have not been met. 38 C.F.R. § 3.321(b)(1) (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The claimant seeks service connection for allergic rhinitis and for a disability manifested by sneezing, sinus discomfort, loss of smell, a metallic taste, and nose and throat itching, claimed as an undiagnosed illness, contending that those conditions were incurred in or aggravated by his active service in the Southwest Asia theater of operations during the Persian Gulf War. He further seeks an initial rating in excess of 10 percent for his service-connected fungus infection of the neck, groin, leg, feet, and toenails, and a total disability rating based on unemployability due to service-connected disabilities. There has been a significant change in the law during the pendency of this appeal with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp. 2001)). This law eliminates the concept of a well-grounded claim, redefines the obligations of VA with respect to the duty to assist, and supersedes the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, 14 Vet. App. 179 (2000) (per curiam order) (holding that VA cannot assist in the development of a claim that is not well grounded). The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. 38 U.S.C. § 5107; See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). First, VA has a duty to notify the appellant and his representative of any information and evidence needed to substantiate and complete a claim. Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate the claim. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2096, 2097-98 (2000) (codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107 (West Supp. 2001)). Final regulations to effectuate the VCAA were published on August 29, 2001 with the same effective date of the VCAA, November 9, 2000. Except for the amendment to 38 CFR § 3.156(a), the second sentence of 38 CFR § 3.159(c), and 38 CFR § 3.159(c)(4)(iii), governing reopening of previously and finally denied claims, the provisions of this final rule apply to any claim for benefits received by VA on or after November 9, 2000, as well as to any claim filed before that date but not decided by VA as of that date. The amendments to 38 CFR § 3.156(a), the second sentence of 38 CFR § 3.159(c), and 38 CFR § 3.159(c)(4)(iii) apply to any claim to reopen a finally decided claim received on or after August 29, 2001. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a)). In general, where the record demonstrates that the statutory mandates have been satisfied, the regulatory provisions likewise are satisfied. In the instant appeal, the veteran's attempt to reopen his claim for service connection for allergic rhinitis was received at the RO in February 2000, and the amended provisions of the regulations to be codified at 38 C.F.R. § 3.156(a), the second sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii) are inapplicable to this particular claim. The record shows that the RO provided the veteran and his representative written notice of the specific provisions of the VCAA in a May 2001 letter, and again in a cover letter with his May 2001 Statement of the Case addressing issues currently on appeal. The record in this case further shows that the RO has obtained the complete service medical records from both periods of the veteran's active service, as well as his service medical records from his period of Army National Guard service; and all private and VA medical records identified by the veteran; and has afforded him VA general medical examinations and special psychiatric examinations, and VA special skin examinations; and a personal hearing before an RO Hearing Officer in July 2000 and a September 2001 hearing before the undersigned traveling Member of the Board sitting at New Orleans, Louisiana. Additionally, the veteran has been apprised of the applicable law governing the issues on appeal in issued rating decisions, statements of the case, and a supplemental statement of the case. The Board finds that the RO has satisfied VA's duty of notification to the claimant of required information and evidence and its duty to assist him in obtaining all evidence necessary to substantiate his claims under the provisions of the VCAA and its implementing regulations. Whether New and Material Evidence has been Submitted to Reopen the Claim for Service Connection for Allergic Rhinitis Following the submission of a notice of disagreement and issuance of a statement of the case, the veteran failed to perfect an appeal of the denial of his claim for direct service connection for an allergy condition by a RO rating decision in October 1998. As such, that decision is final, and new and material evidence must be submitted in order to reopen that claim. See 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (2001); and Hodge v. West, 155 F.3d 1356, 1361-64 (Fed. Cir. 1998). In February 2000, the veteran undertook to reopen his claim for service connection for an allergy condition, citing worsening of that condition after returning from the Persian Gulf war and civilian treatment for that condition. The RO determined that new and material evidence had been submitted to reopen that claim, and denied service connection for allergic rhinitis by rating decision of February 2000, giving rise to that portion of the instant appeal. Under Barnett v. Brown, 83 F.3d. 1380 (Fed. Cir.1996), as any statutory tribunal must ensure that it has jurisdiction over each case before adjudicating the merits, a potential jurisdictional defect may be raised by the court or tribunal sua sponte or by any party and at any stage in the proceedings and, once apparent, must be adjudicated. Title 38 U.S.C. § 7104(b) does not vary the Board's jurisdiction according to how the RO ruled. Accordingly, the Board must independently address the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for allergic rhinitis. In general, RO decisions which are unappealed become final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The governing regulations provide that an appeal consists of a timely filed Notice of Disagreement in writing and, after a Statement of the Case has been furnished, a timely filed Substantive Appeal. 38 C.F.R. 20.200 (2001). The veteran did not file a Substantive Appeal (VA Form 9) to perfect his appeal of the October 1998 denial of his claim for service connection for allergy conditions, and that decision became final after one year. Pursuant to 38 U.S.C.A. § 5108, the Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence had been presented), will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). New and material evidence is defined as evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration; which is neither cumulative nor redundant; and which, by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. In Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeals for Veterans Claims (the Court) held the Board must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim but only after ensuring the VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Once the evidence is found to be new and material and the claim is reopened, the presumption that the evidence is credible no longer applies. In the following adjudication [i.e., de novo review], the RO must determine both the credibility and weight of the new evidence in the context of all the evidence, both old and new. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Kates v. Brown, 5 Vet. App. 93, 95 (1993). The evidence considered at the time of the unappealed rating decision of October 1998 denying service connection for an allergy condition included the veteran's original application for VA disability compensation benefits (VA Form 21-526, received in July 1991; service medical records for his period of Louisiana Army National Guard service from June 29, 1989, through July 1, 1993, including his period of active service from November 22, 1990, to March 27, 1991, in the Southwest Asia theater of operations during the Persian Gulf War, and a September 1991 report of VA general medical examination from the VAMC, Alexandria. That evidence showed that the veteran's original benefit application made no mention of an allergy condition; that the veteran's service medical records for his period of Louisiana Army National Guard service from June 29, 1989, through July 1, 1993 disclosed that on enlistment examination in June 1989, the veteran reported he had an allergy to grass. An examiner noted at that time that the veteran had mild hay fever. In August 1990, he was noted to have sinus congestion. On outprocessing medical examination in March 1991, his nose, sinuses, mouth and throat were noted to be normal. The September 1991 report of VA general medical examination also disclosed that the veteran's nose, sinuses, mouth and throat were normal. The Board finds that the evidence added to the record since the unappealed rating decision of October 1998 includes service medical records from the veteran's earlier period of active service from October 12, 1978, to May 31, 1979; the veteran's service administrative records (DA Form 20 and 201 file) for his period of Army National Guard service; and additional service medical and administrative records from his period of Louisiana Army National Guard service, dated from February to July 1993. Governing regulations provide that where the new and material evidence consists of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered by the adjudicating agency of original jurisdiction. This comprehends official service department records which presumably have been misplaced and have now been located and forwarded to the Department of Veterans Affairs. Also included are corrections by the service department of former errors of commission or omission in the preparation of the prior report or reports and identified as such. 38 C.F.R. § 3.156(c) (2001). The Board finds that the above cited regulation is controlling in this instance, and that the new and material evidence, consisting of the veteran's service medical records from his initial period of active service from October 12, 1978, to May 31, 1979; the veteran's service administrative records (DA Form 20 and 201 file) for his period of Army National Guard service; and additional service medical and administrative records from his period of Louisiana Army National Guard service, dated from February to July 1993, requires that the claim for service connection for allergic rhinitis be reopened. In addition to that evidence, the veteran's contentions and testimony must be presumed credible for purposes of reopening a claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Those contentions are to the effect that he began having symptoms of allergic rhinitis while he was serving in Saudi Arabia during the Persian Gulf War; that there is no competent medical evidence showing that he had allergic rhinitis prior to service entry and such was not shown between 1979 and 1992, or, alternatively, if he did have a preexisting allergic rhinitis, that he experienced aggravation of that condition while serving in the Persian Gulf War, requiring that he avoid wooded areas and making him unfit for Army National Guard service in early 1993. Based upon the foregoing, the Board finds that new and material evidence has been submitted to reopen the veteran's claim for service connection for the claim for service connection for allergic rhinitis, and that claim is hereby reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a),(c) (2001); Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Where new and material evidence has been submitted to reopen a claim for VA benefits, the Board may proceed to evaluate the merits of the claim but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez, 12 Vet. App. at 328. As noted above, the Board has carefully reviewed the record in this case, and finds that all relevant evidence necessary for an equitable disposition of the instant appeal has been obtained by the RO, and that VA's duty of notification to the claimant of required information and evidence and its duty to assist him in obtaining all evidence necessary to substantiate his claims have been fully met. Entitlement to Service Connection for Allergic Rhinitis and Entitlement to Service Connection for a Disability Manifested by Sneezing, Sinus Discomfort, Loss of Smell, a Metallic Taste, and Nose and Throat Itching, Claimed as an Undiagnosed Illness A service department report of preliminary physical review in September 1978 shows that the veteran denied any history of asthma or respiratory problems. An October 1978 report of medical history completed by the veteran shows that he complained of throat trouble (tonsillectomy, mole removal), but denied sinusitis, hay fever, asthma, or shortness of breath. The report of service entrance medical examination in October 1978 disclosed no abnormalities of the veteran's nose, sinuses, mouth, or throat. Service medical records from the veteran's first period of active service show that the veteran was seen in October and November 1978 for an upper respiratory infection (URI), and there was a notation of allergy to grasses and pollen. In December 1978, he was seen for complaints of nasal and chest congestion. A dental patient medical history completed by the veteran in February 1979 shows that he denied being allergic to drugs, foods, materials, or pollen. He was admitted for 4 days in February 1979 with a history of coughing and fever of two days' duration, and found to have Diplococci pneumonia. Follow-up notes show that his pneumonia resolved, and he was returned to duty. In April 1979, he was seen for an URI, while an entry in May 1979 showed an assessment of probable allergic rhinitis. A report of medical history completed by the veteran in May 1979 noted a history of hay fever since childhood, treated when symptomatic and not incapacitating, and denied any history of sinusitis, asthma, shortness of breath, or chronic cough. A report of service separation examination in May 1979 disclosed no abnormalities of the veteran's nose, sinuses, mouth, and throat. The veteran was administratively discharged in May 1979 due to a mixed personality disorder. The record between May 1979 and June 1989 is silent for complaint, treatment, findings or diagnosis of allergic rhinitis, other disease of allergic etiology, or a disability manifested by sneezing, sinus discomfort, loss of smell, a metallic taste, or nose and throat itching. On preinduction screening for entry into the Army National Guard in June 1989, the veteran denied any history of allergies, asthma or respiratory problems. A report of medical history prepared by the veteran at the time of his Army National Guard enlistment examination in June 1989 denied any history of hay fever, sinusitis, asthma, or shortness of breath, but noted that he was allergic to grass. An Army National Guard report of enlistment medical examination in June 1989 disclosed no abnormalities of the veteran's nose, sinuses, mouth, and throat. A single entry in August 1990, prior to Desert Storm deployment, noted a slight sinus congestion. In an October 1990 report of medical history prepared by the veteran at the time of his deployment to Operation Desert Shield, he denied any history of hay fever, sinusitis, asthma, or shortness of breath. An October 1990 summary of screening for Desert Storm showed that the veteran was a healthy male. The veteran's service medical records for his period of active service during the Persian Gulf War are silent for complaint, treatment, findings or diagnosis of any diseases of allergic etiology, including allergic rhinitis, or of any conditions or disorders affecting the veteran's nose, sinuses, mouth, and throat, and he denied having any allergies. He was seen at the 350th Evacuation Hospital on March 11, 1991, and was evacuated because of emotional problems. The records of that hospitalization show no complaint, treatment, findings or diagnosis of any diseases of allergic etiology, including allergic rhinitis, or of any conditions or disorders affecting the veteran's nose, sinuses, mouth, and throat. Upon transit processing and departure from the U.S. Air Force Regional Medical Center, Weisbaden, Germany, in March 1991, the veteran was shown to have no allergies and no sinus or respiratory problems. A report of medical history and assessment at the U.S. Army Community Hospital, Fort Polk, at the time of the veteran's return to the United States in March 1991 shows that the veteran denied any history of allergies, and an ear, nose and throat examination disclosed no findings of ear, nose or throat problems, and there was no rhinorrhea, sore throat, asthma, cough, shortness of breath, or respiratory problems. A medical history prepared by the veteran in connection with his March 1991 demobilization shows that he denied any history of hay fever, sinusitis, asthma or shortness of breath. A report of medical examination of the veteran for demobilization in March 1991 disclosed no abnormalities of the veteran's nose, sinuses, mouth, and throat. Outpatient treatment of the veteran from the VAMC, Alexandria, dated in April, June and July 1991 are silent for complaint, treatment or findings of allergies, asthma, or sinus or respiratory problems, and show that on each occasion, the veteran denied having any allergies. The veteran's original application for VA disability compensation benefits (VA Form 21-526), received in July 1991, made no mention of any disease of allergic etiology, including allergic rhinitis. On VA general medical examination in September 1991, the veteran's nose, sinuses, mouth, throat, and respiratory system were normal. On VA psychiatric examination in October 1991, the veteran stated that he did not serve in combat or see any fighting during the Persian Gulf War. Letters from Dr. J.S.F., a private allergist, dated in May and July 1992 and in February 1993, stated that the veteran is markedly allergic to grasses and pollen, and should avoid a wooded environment and receive allergy therapy. Private treatment records from the Allergy and Asthma Clinic of Alexandria (Dr. B.B.C.), dated in December 1992, and a February 1993 letter showed that the veteran is positively reactive to grasses, trees, weeds, house dust mites, cats and molds. A February 1993 letter from the veteran to the Commanding Officer of his Army National Guard unit stated that his allergies have continued to bother him since his return from Saudi Arabia in April 1991. He asked that he be granted a medical discharge due to an allergy condition which precluded his working in wooded areas and hindered his performance in his unit. He cited allergies to grasses, pollens, and dust mites, and enclosed copies of the above- cited letters from his private physicians. The veteran was given a permanent profile in May 1993 precluding outdoor training in a wooded environment due to severe allergic rhinitis. A Medical Board Report from the Army Community Hospital, Fort Polk, dated in May 1993, cited the veteran's statement that he began having allergy symptoms in childhood and was treated with immunotherapy with good results, and that he subsequently lived for 10 years in Alaska, without allergy symptoms. He further asserted that upon his return to Louisiana following Operation Desert Storm, he noted the return of his allergy symptoms and consulted two civilian allergists who diagnosed a severe allergy to all grasses, rag weed and various other environmental allergens. A review of those reports was noted. Examination disclosed reddened and hypertrophied nasal mucosa, with no sinus tenderness to palpation, diagnosed as allergic rhinitis. The veteran was found not to meet the medical fitness standards for retention, and was separated from the Louisiana Army National Guard as medically unfit for retention on July 1, 1993. Private outpatient treatment records [Dr. A.P.], dated from May 1997 to March 1999, show that the veteran offered a history of possible allergies or asthma, with no positive findings on ear, nose and throat examination. The assessment was hypersensitivity and asthmatic bronchitis. An entry in October 1998 shows that the veteran had nasal secretions, nasal congestion and an erythematous throat, and the assessment was upper respiratory infection (URI). In December 1998, he complained of congestion and a runny nose. A deviated nasal septum and cloudy drainage was noted, and he was given nasal spray. In March 1999, the veteran complained of persistent drainage and itching and sinus problems, and it was noted that he had been treated multiple times by his allergist for allergic rhinitis. Examination disclosed swollen, pale turbinates and some clear, mild drainage. The assessment was allergic rhinitis. In July 1999, he complained of congestion and clear drainage. Examination of the ears, nose and throat disclosed no abnormalities. The assessment was URI and allergic rhinitis. On private hospital admission in July 1999, a physical examination of the veteran disclosed no abnormalities of the nose, mouth or throat. During hospitalization, the veteran complained of congestion and drainage of 3 days' duration, assessed as an URI and allergic rhinitis. A report of VA general medical examination in December 1999 cited the veteran's statement that he was diagnosed with nasal allergies in 1992. Examination of the nose, sinuses, mouth and throat disclosed no abnormalities, and no findings of allergies were reported. On VA psychiatric examination in December 1999, the veteran stated that he did not participate in combat during the Persian Gulf War. A personal hearing was held in July 2000 before a RO Hearing Officer. The veteran testified that he served in Saudi Arabia and Kuwait during the Persian Gulf War; that his duties included being the company commander's driver, driving a tractor trailer delivering water, and assisting the company commander and chaplain in the rear detachment; that he began having symptoms of allergic rhinitis while in Saudi Arabia; that he does not know if he was treated for that condition while in the hospital; that he had trouble with allergies after his return and received treatment after about a year later; that such condition was diagnosed by private allergists who gave him allergy shots; that he had symptoms of sneezing and eyes crusting over when he was in a wooded environment; that he had symptoms of allergic rhinitis as a child, ending when the family moved to Alaska in 1973; that he had no allergy problems thereafter; that when he returned from Saudi Arabia, he began to have problems; and that he has no symptoms while in his home or automobile. A transcript of the testimony is of record. VA outpatient treatment records, dated from January 1999 to November 2000, show that in October 1999, the veteran's ear, nose and throat examination was negative. An entry in January 2000 also shows that the veteran's ear, nose and throat examination was negative. No other complaint or findings related to allergic rhinitis or to a disability manifested by sneezing, sinus discomfort, loss of smell, a metallic taste, and nose and throat itching were noted in those records. In June 2001, the veteran submitted additional written statements into the record. A lay statement from the veteran's mother, dated in June 2001, asserted that the veteran had no allergies or sinus problems after moving to Alaska in 1973 and required no further treatment until after he came back from the Persian Gulf War in 1991; that he was medically discharged from the Army National Guard in 1993 due to his sinuses and allergies; that he rarely seeks medical attention because of his emotional problems; and that she believed that his Persian Gulf War service aggravated his sinuses and caused his allergy and sinus problems to resurface. In a June 2001 Statement in Support of Claim, the veteran stated that his sneezing, sinus discomfort, loss of smell, a metallic taste, and nose and throat itching has been diagnosed as allergic rhinitis by the VA; that his allergic rhinitis was aggravated and resurfaced due to his exposure to the harsh environment, toxins, chemical weapons, dead bodies, missile attacks, dust storms, lack of adequate food and sleep, injection with anthrax antibodies, ingestion of tablets, SCUD missile attacks, oil well fires in Kuwait, depleted uranium from United States munitions, fierce sand storms in the desert, horrible dusty and dirty living conditions, chemical weapon exposure from the destruction of a munitions dump in Khamisiyah, Iraq, in March 1991 while on active duty in a combat zone in Saudi Arabia, Iraq, and Kuwait. The veteran further asserted that medical examinations at service entry in June 1989 and in October 1978 disclosed no findings that he suffered from allergies or sinus problems at that time; that he was thus entitled to the presumption of soundness at entry under 38 U.S.C.A. § 1111; that medical examinations in October 1990 and in March 1991 also show no findings that he suffered from allergies or sinus problems; that he was in the military when sinus and allergy problems arose after coming back from the Persian Gulf War; that VA has failed to produce clear, and unmistakable evidence sufficient to over come the presumption of soundness at service entry; and that VA had failed to provide a VA allergy examination. In addition, he cited letters and reports from his private physicians and from an Army doctor as more than sufficient proof that he is suffering from allergic rhinitis with sneezing, sinus discomfort, loss of smell, a metallic taste, and nose and throat itching as a direct result of his active military duty; that he served in combat in the Persian Gulf War and is entitled to VA disability compensation under 38 U.S.C.A. §§ 1110, 1111, 1131, 1153, and 1154(b) and decisions of the Court. He further contended that he was hospitalized in Saudi Arabia for depression and for his sinus and allergy problems; that the VA should be able to find his medical records; and that all reasonable doubt should be resolved in his favor under 38 U.S.C.A. § 5107(b); and that his allergy and sinus problems were incurred in or aggravated by active during the Persian Gulf War. VA outpatient treatment records, dated from January 2000 to June 2001, show no complaint, treatment, findings or diagnosis of allergic rhinitis or nose, sinus, mouth, or throat problems. At his September 2001 hearing held at the RO before the undersigned Member of the Board, the veteran testified, in pertinent part, that he had allergy problems as a child and received allergy shots from about 1971 to 1973 while living in Shreveport, Louisiana; that his family moved to Alaska in 1973 when his father was transferred there; that he had no more allergy problems while living in Alaska and was told that he had no further need to take allergy shots; that he subsequently lived in Illinois, Maine and Indiana with no recurrence of allergy problems; that he had no problems with allergies during his first period of active service while stationed in Texas and Arkansas; that he arrived in Dhahran on Thanksgiving Day 1990 and started having problems within a week or two after his arrival in Saudi Arabia; that he was in a combat zone while in Saudi Arabia; that he was treated at a MASH unit for watering and itching eyes and breathing problems; that his sinus problems started after he returned to the United States in March or April 1991; that his sneezing, sinus discomfort, loss of smell, a metallic taste, and nose and throat itching started a year or two after returning from Saudi Arabia; that he had seen four different doctors (two allergists) for allergy problems; and that he believes that his sneezing, sinus discomfort, loss of smell, a metallic taste, and nose and throat itching is part of his allergic rhinitis. A copy of the transcript is of record. Following his testimony, the veteran submitted additional evidence into the record. A lay statement from his spouse, dated in September 2001, addressed the symptoms and manifestations of his sinus and allergy condition, including drainage, loss of smell and taste, and nasal congestion and drainage. Analysis In order to establish service connection for claimed disability, the facts, as shown by evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West Supp. 2001); 38 C.F.R. § 3.303(a) (2001). Service connection may also be granted on a presumptive basis for certain chronic disabilities when manifested to a compensable degree within the initial post service year. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.307, 3.309(b) (2001). VA shall pay compensation in accordance with Chapter 11 of Title 38 United States Code, to a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms involving the respiratory system (upper or lower) provided that such disability: (i) Became manifest during either active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than September 30, 2011; and (ii) By history, physical, examination, or laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. §§ 1117 (West Supp. 2001) (as amended by Veterans Education and Benefits Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (Dec. 27, 2001). In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d) (2001). "Satisfactory lay or other evidence" under 38 U.S.C.A. § 1154(b) means "credible evidence." Caluza v. Brown, 7 Vet. App. 498, 510 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996) (table). A veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed in sound condition except for defects noted when examined and accepted for service. 38 U.S.C.A. § 1111, 1137 (West 1991); 38 C.F.R. § 3.304(b) (2001). Clear and unmistakable evidence that the disability existed prior to service will rebut this presumption. 38 U.S.C.A. §§ 1111, 1113 (West 1991); 38 C.F.R. § 3.304(b) (2001). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b) (2001). A history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b) (2001); Crowe v. Brown, 7 Vet. App. 238, 245 (1994). "[T]he appellant's account of a prior condition is . . . an inadequate basis upon which the Board could have concluded that he had a condition that preexisted service." Paulson v. Brown, 7 Vet. App. 466, 286 (1994). Signed statements of veterans relating to the origin, or incurrence of any disease or injury made in service if against his or her own interest is of no force and effect if other data do not establish the fact. Other evidence will be considered as though such statement were not of record. 38 C.F.R. § 3.304(b)(3) (2001). In addition, if a condition noted during service is not shown to be chronic, then continuity of symptomatology after service generally is required for service connection. 38 C.F.R. § 3.303(b) (2001). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. 38 C.F.R. § 3.303(b) (2001). The record shows that the RO has obtained the veteran's complete service medical and administrative records, including service entrance and service separation examinations, from the veteran's initial period of active duty with the United States Air Force from October 12, 1978, to May 31, 1979; and from his period of Army National Guard service from June 29, 1989, to July 1, 1993, including from his period of active service from November 22, 1990, to March 27, 1991, in the Southwest Asia theater of operations during the Persian Gulf War, including his hospitalizations at the 350th Evacuation Hospital and at the Army Community Hospital, Fort Polk. There is no indication that such records are other than complete and comprehensive. It is neither contended nor established that the veteran had allergic rhinitis during or after his initial period of active service from 1978 to 1979. The veteran has offered sworn testimony that any childhood allergies he might have had ended in 1973; that he had no problems with allergic rhinitis during his initial period of active service or during the period between service separation in May 1979 and his entry into the Army National Guard in June 1989; and that he had no problems with allergic rhinitis or other diseases of allergic etiology when examined for Desert Storm deployment in October 1990. The Board finds that the veteran's service entrance examination in October 1978 disclosed no pertinent defects, and he is entitled to the presumption of soundness at service entry as to that period of active duty. There is no competent medical evidence or diagnosis establishing the clinical presence of allergic rhinitis or other disease of allergic etiology during the veteran's initial period of active service, or on his service separation examination in May 1979. Based upon the foregoing, the Board finds no evidence that the veteran had allergic rhinitis during his initial period of active service. The record is likewise silent for any complaint, treatment, findings or diagnosis of allergic etiology during the period between service separation examination in May 1979 and his entry into the Army National Guard in June 1989. There is no competent medical evidence showing that the veteran had allergic rhinitis during his period of Army National Guard service prior to his active service during the Persian Gulf War. An October 1990 summary of screening for Operation Desert Storm showed that the veteran was a healthy male. Thus, the veteran is entitled to the presumption of soundness as to his period of active duty in the Southwest Asia theater of operations during the Persian Gulf War. The veteran's service medical records for his period of active service during the Persian Gulf War, including the March 1991 records from the 350th Evacuation Hospital, the U.S. Air Force Regional Medical Center, Weisbaden, Germany, and the U.S. Army Community Hospital, Fort Polk, disclose no complaint, treatment, findings or diagnoses of any diseases of allergic etiology, including allergic rhinitis, or of any conditions or disorders affecting the veteran's nose, sinuses, mouth, and throat. At the time of his demobilization examination, the veteran denied any history of hay fever, sinusitis, asthma or shortness of breath, and a report of medical examination of the veteran for demobilization in March 1991 disclosed no abnormalities of his nose, sinuses, mouth, and throat. To the same point, outpatient treatment records of the veteran from the VAMC, Alexandria, dated in April, June and July 1991, are silent for complaint, treatment or findings of allergies, asthma, or sinus or respiratory problems, and show that on each occasion, the veteran denied having any allergies. The veteran's original application for VA disability compensation benefits (VA Form 21-526), received in July 1991, made no mention of any disease of allergic etiology, including allergic rhinitis. On VA general medical examination in September 1991, the veteran's nose, sinuses, mouth, throat, and respiratory system were normal. The first competent medical evidence showing the clinical presence of allergic rhinitis is dated in May 1992. The veteran has argued, and the Board concedes, that there is no competent medical evidence showing that allergic rhinitis was noted on examinations for entry into active service in October 1978 and in October 1990, and that he is thus entitled to the presumption of soundness at entry under the provisions of 38 U.S.C.A. § 1111, 1137 (West 1991); 38 C.F.R. § 3.304(b) (2001). However, neither is there any competent medical evidence showing that allergic rhinitis, or any disease of allergic etiology, was present or manifested during active service. Similarly, there is no competent medical evidence showing that any symptoms of sneezing, sinus discomfort, loss of smell, a metallic taste, and nose and throat itching was present or manifested during active service, although all or most of such claimed symptoms are demonstrated following service and attributed to upper respiratory infections and to his diagnosed allergic rhinitis. The Court has held that the Board has the duty to assess the credibility and weight to be given the evidence, but must provide reasons and bases for rejecting critical evidence, expert or otherwise. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The veteran's initial contention that allergic rhinitis was present during active service appears in his sworn testimony at a personal hearing held in July 2000, approximately 9 years after service separation, when he testified that he began having symptoms of allergic rhinitis while in Saudi Arabia; that he does not know if he was treated for that condition while in the hospital; and that he had trouble with allergies after his return and received treatment about a year later. He further testified in September 2001 that he was treated for allergy symptoms at a MASH unit within a week or two after arriving in Saudi Arabia, and that he was hospitalized and treated in Saudi Arabia for depression and allergy and sinus problems. Although the Board is obligated to consider the testimony, in evaluating that testimony it may consider such factors as self interest. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [interest may affect the credibility of testimony]; cf. Pond v. West, 12 Vet. App. 341, 346 (1999). The record shows that the veteran's testimony that he was treated for allergic rhinitis or for allergy and sinus problems while on active duty during the Persian Gulf War is without substantiation in his service medical records or in the records of his hospitalization in Saudi Arabia or at Fort Polk. Further, such testimony is directly contrary to the veteran's service medical records, which show that on a March 1991 report of medical history and assessment at the U.S. Army Community Hospital, Fort Polk, he denied any history of allergies; that a medical history prepared by the veteran in connection with his March 1991 demobilization shows that he denied any history of hay fever, sinusitis, asthma or shortness of breath, and that his service separation examination in March 1991 disclosed no abnormalities of his nose, sinuses, mouth, and throat. Similarly, on outpatient treatment at the VAMC, Alexandria, in April, June and July 1991, he denied having any allergies. To the same point, the veteran's initial claim for service connection for an allergy condition, received in July 1998, stated that his allergy condition worsened after he returned from the Persian Gulf War in 1991. A February 1993 letter from the veteran to the Commanding Officer of his Army National Guard unit stated that his allergies have continued to bother him since his return from Saudi Arabia in April 1991. A Medical Board Report from the Army Community Hospital, Fort Polk, dated in May 1993, cited the veteran's statement that his allergy symptoms recurred upon his return to Louisiana following Operation Desert Storm. A report of VA general medical examination in December 1999 cited the veteran's statement that he was diagnosed with nasal allergies in 1992. The June 2001 lay statement from the veteran's mother asserts that the veteran did not suffer any post-1973 allergy or sinus related problems until after he returned from active service in the Persian Gulf War. In his June 2001 Statement in Support of Claim, the veteran asserted that he never had any more allergy problems after 1973 until he came back from the Persian Gulf War, and that allergies later resurfaced after coming back from the Persian Gulf War in 1991. The veteran testified in July 2000 that he that he did not know if he was treated for allergic rhinitis while in the hospital in Saudi Arabia, while submitting a June 2001 statement alleging that he was hospitalized in Saudi Arabia for depression and for his sinus and allergy problems. However, the hospital summary from the 350th Evacuation Hospital shows that he was admitted and treated only for major depression. Based upon the foregoing, the Board finds that the preponderance of the evidence is against a finding that the veteran was treated for allergic rhinitis or for a chronic disability manifested by sneezing, sinus discomfort, loss of smell, a metallic taste, and nose and throat itching while on active duty during the Persian Gulf War. While the Board acknowledges in its analysis contained in this decision that the provisions of 38 U.S.C.A. § 1154(a) (West 1991) are for application in this appeal, the veteran has further argued that he is entitled to the lightened evidentiary burden afforded combat veterans under the provisions of 38 U.S.C.A. § 1154(b) (West 1991) and 38 C.F.R. § 3.304(d) (2001). The specific evidentiary standards and procedures in 38 U.S.C.A. § 1154(b) only apply once combat service has been established. In the absence of any definition of the phrase or its terms in any applicable statute or regulation, the ordinary meaning of the phrase "engaged in combat with the enemy" requires that the veteran have personally taken part in a fight or encounter with a military foe or hostile unit of instrumentality. The phrase would not apply to veterans who served in a general "combat area" or "combat zone" but did not themselves engage in combat with the enemy. The issue must be resolved on a case-by-case basis, assessing the credibility, probative value, and relative weight of each relevant item of evidence. VAOPGCPREC 12-99; Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). However, there is no evidence that the veteran served in combat during his period of active duty in the Persian Gulf War. To the contrary, his DD Forms 214 and 215 and his service administrative records for that period of active service show that he served as a motor vehicle operator, and that he received no combat awards or decorations for valor during that period of active service. Further, on VA psychiatric examination in October 1991, the veteran stated that he did not serve in combat or see any fighting during the Persian Gulf War, and on VA psychiatric examination in December 1999, he again indicated that he did not participate in combat. At his personal hearing in July 2000, the veteran offered sworn testimony that he served in Saudi Arabia and Kuwait during the Persian Gulf War, and that his duties included being the company commander's driver, driving a tractor trailer delivering water, and assisting the company commander and chaplain in the rear detachment. The Board finds that there is no affirmative evidence showing that the veteran served in combat, and that he has offered statements and sworn testimony that his duties were of a non-combat nature. The veteran has contended that his allergic rhinitis and his disability manifested by sneezing, sinus discomfort, loss of smell, a metallic taste, and nose and throat itching was caused by one or more environmental factors while on active duty during the Persian Gulf War. Those factors include his exposure to the harsh environment, toxins, chemical weapons, dead bodies, missile attacks, dust storms, lack of adequate food and sleep, injection with anthrax antibodies, ingestion of tablets, SCUD missile attacks, oil well fires in Kuwait, depleted uranium from United States munitions, fierce sand storms in the desert, horrible dusty and dirty living conditions, and chemical weapon exposure from the destruction of a munitions dump in Khamisiyah, Iraq, in March 1991 while on active duty in a combat zone in Saudi Arabia, Iraq, and Kuwait. However, the Court has held that a lay person, such as the veteran, is not competent to offer evidence that requires medical knowledge, such as the diagnosis or cause of a disability. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). If such testimony is not competent, it cannot be probative. Further, the veteran has not submitted any competent medical evidence linking or relating his allergic rhinitis to his period of active service during the Persian Gulf War. While the veteran has contended that he was in the military when sinus and allergy problems arose after coming back from the Persian Gulf War, the record shows that he was discharged from active duty on March 27, 1991, and that he was not on active duty when allergic rhinitis was initially diagnosed in May 1992. He has further argued that VA has failed to produce clear and unmistakable evidence sufficient to overcome the presumption of soundness at service entry. However, in the absence of competent medical evidence showing that allergic rhinitis was clinically manifest or worsened during active service, the necessity to overcome the presumption of soundness at entry is not reasonably demonstrated. As to the contention that VA failed to provide a VA allergy examination, the Board notes that beginning in May 1992, the veteran's private allergists and his other physicians, as well as VA physicians, have diagnosed allergic rhinitis in the veteran. The current existence of allergic rhinitis in the veteran is conceded and is not at issue; the only issue is service incurrence of that disorder, and no competent medical evidence has been submitted which demonstrates that allergic rhinitis was incurred in active service. Additional medical evidence showing that the veteran continues to have allergic rhinitis would not serve to relate that condition to his period of active service. Further, the VCAA includes the provision of a medical examination and opinion unless "no reasonable possibility exists that such assistance will aid in the establishment of entitlement." However, in the absence of competent medical evidence demonstrating or diagnosing allergic rhinitis during active service or at any time prior to May 1992, there is no factual predicate upon which to relate the veteran's current allergic rhinitis to his period of active service. The Board has also considered the veteran's contentions that his allergic rhinitis or a disability manifested by sneezing, sinus discomfort, loss of smell, a metallic taste, and nose and throat itching, claimed as an undiagnosed illness, are due to the demolition of Iraqi weapons at Khamisiyah on March 10-13, 1991. However, his private allergists and private and VA physicians relate those symptoms (nasal secretions, nasal congestion, an erythematous throat, sinus problems, a runny nose, persistent drainage, and itching, with swollen, pale turbinates) to allergic rhinitis. Moreover, on July 6, 2001 (66 Fed. Reg. 35702-35710), the Secretary of Veterans Affairs, under the relevant statutory authorities, determined that at that time there was no basis for establishing a presumption of service connection for any illness suffered by Persian Gulf War veterans based on exposure to depleted uranium, sarin, pyridostigmine bromide, and certain vaccines. The veteran has offered no competent medical evidence establishing a link between his current symptomatology and his active service in the Persian Gulf War. Based upon the foregoing, the Board concludes that allergic rhinitis or other disease of allergic etiology was not manifest during the veteran's initial period of active service from October 12, 1978, to May 31, 1979, or during his period of active service from November 22, 1990, to March 27, 1991, in the Southwest Asia theater of operations during the Persian Gulf War. 38 U.S.C.A. §§ 1110, 1131 (West Supp. 2001); 38 C.F.R. § 3.303(a) (2001). Further, diseases of allergic etiology, including allergic rhinitis, are not diseases which may be presumptively service-connected under the provisions of 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.307, 3.309(b) (2001). In addition, the Board finds that objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms involving the respiratory system (upper or lower), including a disability manifested by sneezing, sinus discomfort, loss of smell, a metallic taste, and nose and throat itching, claimed as an undiagnosed illness, were not manifested by one or more signs or symptoms during the veteran's period of active duty in the Southwest Asia theater during the Persian Gulf War, and that such symptoms are not an undiagnosed illness but have been attributed by private physicians and allergists and by VA physicians to his diagnosed allergic rhinitis. Thus, service connection for a disability manifested by sneezing, sinus discomfort, loss of smell, a metallic taste, and nose and throat itching, claimed as an undiagnosed illness, is not warranted. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2001). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In reaching the above decisions, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant's claims, the doctrine is not for application. 38 C.F.R. § 3.102 (2001). Entitlement to a Rating in Excess of 10 Percent for a Fungus Infection of the Neck, Groin, Legs, Feet, and Toenails I. The Evidence A rating decision of January 2001 granted service connection for a fungus infection of the neck, groin, legs, feet and toenails, evaluated as 10 percent disabling, effective October 22, 1999. The veteran appealed, seeking a rating in excess of 10 percent for that disability. VA outpatient treatment records, dated in October 1999 disclosed rashes over the neck and, over the groin diagnosed as tinea cruris. A report of VA general medical examination in December 1999 disclosed that his skin was normal. VA outpatient treatment records dated in March 2000, noted a skin rash about the groin and toes, diagnosed as chronic dermatophytosis. In October 2000, the veteran offered a history of a skin rash of the neck, legs, feet and toenails. Examination revealed erythematous plaques with a well-defined border and scaling of the groin, gluteal crease, and right anterior thigh, scaling of the soles of the feet, a greasy scale of the ears, posterior neck, and keratosis and subungual debris of the toenails, bilaterally, diagnosed as tinea corpus, tinea pedis, tinea cruris, with possible onychomycosis, and seborrheic dermatitis. In November 2000, thickening and subungual debris of the toenails was noted, and the diagnoses were tinea corporis, tinea pedis, tinea cruris, and onychomycosis. A November 2000 report of VA dermatological examination cited the veteran's complaints of intermittent rashes over the body since returning from Saudi Arabia. Examination disclosed that all of the veteran's toes were involved with distal subungual debris, with normal proximal regrowth; mild hyperkeratosis of the heels, and one 2 mm. patch of xerosis at the right inner knee. His KOH and culture testing were positive. The remainder of his dermatological examination was negative, and there were no associated nervous manifestations. The diagnosis was tinea unguium and xerosis, very mild. Another report of VA dermatological examination in December 2000 cited findings of tinea pedis, tinea cruris, tinea corporis, with no current involvement of the groin area, and no ulceration, exfoliation, crusting, or associated systemic or nervous manifestations. The diagnosis was onychomycosis. An attachment discussed nail fungus, and tinea pedis, tinea cruris, tinea corporis, and ringworm. VA outpatient treatment records, dated in January 2001, noted that the veteran's tinea pedis, tinea cruris, and tinea corporis had cleared, while there was thickening and subungual debris of all toenails, diagnosed as intermittent tinea cruris and onychomycosis. A letter from the veteran's spouse, dated in June 2001, stated that the veteran had rashes on his groin, buttocks and leg areas, with red bumps and pus and blackened toenails. At his hearing held in September 2001, the veteran testified that he had a fungus infection located on his feet and buttocks, extending to his groin and legs, with thickened, blackened and discolored toenails, itching between the toes, and a bad odor. He complained of sores on his body and extremities, and difficulty with driving. II. Analysis Applicable law mandates that when a veteran seeks an original or increased rating, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. AB v. Brown, 6 Vet. App. 35 (1993). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321(a), 4.1 (2001). Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2001). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely related. 38 C.F.R. Part 4, § 4.20 (2001). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. Part 4, § 4.7 (2001). This case addresses the assignment of an initial rating following an initial award of service connection for the disability at issue. In such cases, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). Tinea corporis, tinea cruris, tinea pedis, dermatophytosis and onychomycosis are rated as eczema, and evaluated as 10 percent disabling when manifested by exfoliation, exudation or itching, if on an exposed surface or extensive area; as 30 percent disabling when manifested by exudation or constant itching, extensive lesions, or marked disfigurement; and as 50 percent disabling when manifested by ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptionally repugnant. 38 C.F.R. Part 4, § 4.118, Diagnostic Codes 7806, 7813, 7819 (2001). The medical evidence of record shows that the veteran experiences an intermittent skin rash involving areas of the neck, buttocks, groin, legs, feet, and toenails, and diagnosed as tinea corporis, tinea cruris, and tinea pedis and dermatophytosis. There is no competent medical evidence showing that the veteran's fungus infections of the skin are manifested by exudation or constant itching, extensive lesions, or marked disfigurement, as required for a 30 percent evaluation, or by ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptionally repugnant. There have been no objective clinical findings of exudation, constant itching, extensive lesions, marked disfigurement, systemic or nervous manifestations, or exceptionally repugnant manifestations. The most recent VA dermatological examinations of the veteran in November and December 2000 disclosed that the veteran's toes were involved with distal subungual debris, with normal proximal regrowth; mild hyperkeratosis of the heels, and one 2 mm. patch of xerosis at the right inner knee. His KOH and culture testing were positive. The remainder of his dermatological examination was negative, and there were no associated nervous manifestations. The diagnosis was tinea unguium and xerosis, very mild. The December 2000 VA dermatological examination in December 2000 cited findings of tinea pedis, tinea cruris, tinea corporis, with no current involvement of the groin area, and no ulceration, exfoliation, crusting, or associated systemic or nervous manifestations, and the diagnosis was onychomycosis. Further, the most recent VA outpatient dermatological records show that the veteran's tinea pedis, tinea cruris, and tinea corporis had cleared, while there was thickening and subungual debris of all toenails, diagnosed as intermittent tinea cruris and onychomycosis. Based upon the medical evidence of record, including clinical findings on VA dermatological examinations and outpatient treatment records, the veteran's service-connected fungus infection of the neck, buttocks, groin, legs, feet, and toenails, is currently manifested by no more than a mild, intermittent skin rash involving areas of the neck, buttocks, groin, legs, and feet, diagnosed as tinea corporis, tinea cruris, tinea pedis, and dermatophytosis, positive potassium hydroxide (KOH) and culture testing, and thickened and discolored toenails, with subungual debris, diagnosed as onychomycosis, without objective clinical findings of exudation or constant itching, extensive lesions, scarring, marked disfigurement; ulceration or extensive exfoliation or crusting, systemic or nervous manifestations, or exceptionally repugnant manifestations. The only exposed area indicated in the medical record is the posterior neck, and there are currently no findings of any active involvement of the posterior neck area. Based upon the foregoing, and for the reasons and bases stated, the Board finds that the preponderance of the evidence is against an initial rating in excess of the currently assigned 10 percent evaluation, at all times during the rating period, for a fungus infection of the neck, buttocks, groin, legs, feet and toenails. 38 C.F.R. Part4, § 4.118, Diagnostic Code 7806, 7813, 7819 (2001). Further, the medical record does not demonstrate such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular ratings. 38 C.F.R. § 3.321(b) (2001). In reaching its decisions, the Board has considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Further, as there has been no clinically significant change in the overall disability status during the rating period, staged ratings are not warranted. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Entitlement to a Total Disability Rating Based on Unemployability due to Service Connected Disabilities The veteran also seeks a total disability rating based on unemployability due to service connected disabilities. The medical and other evidence of record and the information provided on the Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940) shows that the veteran was born on September [redacted], 1961; that he has a college education and is currently attending law school; and that he has occupational experience as a truck driver and dispatcher, gas station and truck stop worker, and long-term experience as a law enforcement officer. Evidence contained in the record cites the veteran's statement that he was fired from his job as a police officer in 1988 because of problems related to drinking and slapping his girlfriend. The veteran has stated that he last worked in May 1999 as a deputy sheriff, and that he stopped working due to his service- connected PTSD. However, the record shows that the veteran was terminated from his employment with the a city police department by action of a city Municipal Fire and Police Civil Service Board on July 15, 1999, because of violation of departmental rules and regulations following an internal investigation. Service connection is in effect for PTSD, evaluated as 50 percent disabling, and for a fungus infection of the neck, buttocks, groin, leg, feet, and toenails, currently evaluated as 10 percent disabling, and the veteran's combined service- connected disability rating is 60 percent, effective September 1999. The disabling manifestations of the veteran's service-connected fungus infection of the neck, buttocks, groin, leg, feet, and toenails have been discussed above. Private treatment records, dated in June 1997, show that the veteran was seen for evaluation of an attention deficit hyperactivity disorder (ADHD), treated with Ritalin in elementary school. Private treatment records dated from July 1998 to July 1999 show that he was treated for major depression. A private hospital summary, dated in July 1999, shows that the veteran was admitted with a history of dysthymic disorder, attention deficit disorder, and PTSD. His GAF score on admission was currently 30, and 60 for the past year. Mental status examination on admission disclosed that he was alert and well-oriented, with appropriate eye contact, and a decreased mood and tearfulness. His judgment as poor, by history, and he denied homicidal or suicidal ideation or auditory or visual hallucinations. The diagnostic impression was major clinical depression, attention deficit disorder, and PTSD. In a July 1999 letter, the veteran's treating psychiatrist stated that he was unable to work at the present time. The veteran remained in the hospital for only four days, and at the time of hospital discharge, he was reported to be much improved, and stated that he was feeling much better. The Axis I diagnoses at hospital discharge were major depression, adjustment disorder with depressed mood, ADHD, and PTSD. His Axis V Global Assessment of Functioning (GAF) score was currently 65, and 60 for the past year. VA mental health clinic outpatient records, dated from July to September 1999, show that the veteran was diagnosed with PTSD, ADHD, and major depressive disorder, and treated with Prozac. On mental status examination in July 1999, he was moderately depressed and occasionally tearful, but open and cooperative, with fair insight and psychological mindedness and no evidence of psychosis. His GAF score was 51. An October 1999 letter from a VA physician stated that the veteran was incapable of sustained gainful employment at that time, but indicated that he was unable to state when the veteran would be able to return to work. A report of VA psychiatric examination in December 1999 shows that the veteran complained of a depressed mood, anxiety, diminished interest in activities, insomnia, chronic fatigue, feelings of worthlessness and guilt, occasional thoughts of suicide, recurrent and intrusive thoughts, recurrent and distressing dreams, intense psychological and physiological reaction on exposure to the traumatic event, a feeling of detachment and difficulty feeling close to others, but denied symptoms of reexperiencing, avoidance, or increased arousal. The veteran had recently graduated from college with honors and was currently involved in law school. The veteran reported that he had just lost his job, and was going through a divorce. Psychological testing disclosed moderate to severe depressive symptoms, while his Combat Exposure Scale and Mississippi Scale for PTSD results were quite high, particularly in view of his reported duties and experiences while in Saudi Arabia. Results on the MMPI PTSD scale were below the cut-off for PTSD. It was noted that two physicians had indicated that the veteran was incapable of maintaining gainful employment at that time, and the examining psychiatrist questioned that the veteran was able to function in law school but not at work, and further questioned his purpose in entering law school if he was unable to work. The Axis I diagnoses were major depressive disorder, recurrent episodes, moderate; anxiety disorder, not otherwise specified; and borderline personality disorder with passive aggressive features. The Axis V GAF score was 49. A personal hearing was held in July 2000 before an RO Hearing Officer. The veteran testified, in pertinent part, as to his inservice stressors and stated that he had been diagnosed with PTSD, anxiety, and major depression at the VAMC, Shreveport, and the VAMC, Baton Rouge. He asserted that he was unemployable, citing the loss of his job in July 1999 because of complaints about his behavior. He related that he was currently attending law school through Vocational Rehabilitation & Education (VR&E). A transcript of the testimony is of record. VA mental health clinic outpatient records, dated from January 1999 to September 2000, show that the veteran was diagnosed with PTSD, ADHD, and major depressive disorder, and treated with Prozac. His GAF score was 51. In December 1999, his GAF score was 60, while in January 2000, he reported that he was doing better and had successfully completed his first year of law school, and his GAF score was 65. Entries in January 2000 shows that the veteran reported that he was dong well and had passed all his law school courses. Mental status examination revealed that he was alert, well-oriented and cooperative, with a constricted affect, normal speech, and coherent thought processes. He denied homicidal or suicidal ideation, was not overtly psychotic, his judgment and insight were intact, and his GAF score was 65. In May 2000, the veteran's mental status examination disclosed that he was alert, well-oriented and cooperative, with a constricted affect, normal speech, and coherent thought processes. He denied homicidal or suicidal ideation, was not overtly psychotic, and was capable of handling his personal affairs. His GAF score was 75. The veteran has reported that he joined a law school student study group. Records dated in July 2000 show that the veteran was found entitled to VA Vocational Rehabilitation & Education (Chapter 31) benefits for his law school attendance. In August 2000, the veteran was shown to be doing well, and reported that he had moved, was engaged and was an expectant father, and in September 2000, he reported that he was doing well, and that things were going well. Treatment for PTSD and attention deficit disorder was continued. In November 2000, he reported feeling "down" because he had to go to New Orleans to take a test in order to take the bar exam. In March 2001, the veteran noted stress at law school, but reported that he had gotten married; that he was expecting his second child; and that he was pleased with his personal life. Mental status examination revealed that he was alert, well-oriented and cooperative, with normal speech and coherent and goal- directed thoughts, a slightly anxious affect, a normal mood, intact judgment and insight. He was motivated and had a good understanding of his illness, and denied homicidal or suicidal ideation, was not overtly psychotic, and was capable of handling his personal affairs. Entries dated in June and July 2001 show that he was continuing in law school; that he was anxious and depressed, but had no homicidal or suicidal ideation, was not overtly psychotic, and his insight and judgment were intact. The Board's review of the evidence shows that on private hospital admission in July 1999, the examining psychiatrist found that, while the veteran's GAF score was 30 on admission, his GAF score for the past year was 60, indicative of moderate symptoms or moderate difficulty in social, occupational or school functioning. At the time of hospital discharge, the veteran had improved, and his treating psychiatrist reported that his GAF score was currently 60. While several lower GAF scores were subsequently shown (i.e., 51, 49), his GAF scores were 60 in December 1999, 65 in January 2000 (indicative of some mild symptoms or some difficulty in social , occupational, or school functioning, but generally functioning pretty well, with some meaningful interpersonal relationships), and 75 in May 2000, indicative of transient and expectable reactions to psychosocial stressors, with no more than slight impairment in social, occupational or school functioning. While much is made of two letters, dated in July and October 1999, opining that the veteran was currently incapable of working, the Board notes that the July 1999 letter was written two days after the veteran was discharged by the same psychiatrist with a current GAF score of 60, and 60 for the past year, indicative of only some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, with some meaningful interpersonal relationships. The October 1999 letter from a VA physician stated that the veteran was incapable of sustained gainful employment at that time, but indicated that he was unable to state when the veteran would be able to return to work. However, the most recent mental status examinations of the veteran disclose that he is alert, well- oriented and cooperative, with a an occasional constricted, anxious, or depressed affect, normal speech, and coherent thought processes; that he is without psychosis and consistently denies homicidal or suicidal ideation; and that his judgment and insight are intact. The record shows that he is attending law school and passing his courses, and that he is generally pleased with his life and states that he is doing well. The General Rating Formula for Mental Disorders, found at 38 C.F.R. Part 4, § 4.130 (2001) provides that the next higher disability rating for PTSD requires a showing of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to symptoms such as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships will be rated as 70 percent disabling. Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name will be rated as 100 percent disabling. 38 C.F.R. Part 4, § 4.130, Diagnostic Code 9411 (2001). In this case, the evidence shows that the veteran is married and successfully attending law school full time; that he participates in a law school study group; that his family relations are appropriate, and his judgment and insight are intact; that his speech is normal, coherent and goal- directed; that his judgment, thinking and mood are intact and appropriate; that he denies homicidal or suicidal ideation; and that a progressive improvement in his condition has been demonstrated since he was reported to be currently unemployable. There is no competent medical evidence showing disorientation to time or place, memory loss, obsessional rituals, delusions or hallucinations, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively. There are no clinical findings of gross impairment in thought processes or communication, impaired impulse control, spatial disorientation, intermittent inability to perform activities of daily living, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances (including work or a work-like setting); or inability to establish and maintain effective relationships. Based upon the foregoing, the Board finds that the veteran's PTSD is not productive of disabling manifestations sufficient to warrant a rating in excess of 50 percent under the provisions of 38 C.F.R. Part 4, § 4.130, Diagnostic Code 9411 (2001). The Board further finds that the veteran's service-connected PTSD and fungus infection of the neck, buttocks, groin, legs, feet, and toenails are not manifested by unusual or exceptional factors such as marked interference with employment or frequent periods of hospitalization such as to render inapplicable the regular schedular standards. A claim for a total rating for compensation purposes based on a veteran's contention that he is unable to secure and follow a substantially gainful occupation due to service-connected disabilities shares the essential characteristics of a claim for an increased rating. See Suttmann v. Brown, 5 Vet. App. 127, 128 (1993) and Proscelle, 2 Vet. App. 629, 631 (1992). As noted previously, VA has no further or unmet duty to assist the veteran in developing facts pertinent to this claim. A disability rating is based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome, and not from individual success in overcoming it. See 38 C.F.R. § 4.15 (2001). A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disabilities may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases, except where specifically prescribed by the VA's Schedule for Rating Disabilities (Schedule). Total ratings are authorized for any disability, or combination of disabilities, for which the Schedule prescribes a 100 percent evaluation or, with less disability, where the requirements of 38 C.F.R. § 4.16 are met. See 38 C.F.R. §§ 3.340, 4.15 (2001). However, if the total rating is based on a disability, or combination of disabilities, for which the Schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. See 38 U.S.C.A. § 1155; 38 C.F.R. § 3.341. Furthermore, entitlement to individual unemployability for compensation must be established solely on the basis of impairment arising from service-connected disabilities. See 38 C.F.R. § 3.341(a); Blackburn v. Brown, 4 Vet. App. 395, 398 (1993). Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. 38 C.F.R. § 4.16(b). In this case, service connection is in effect for PTSD, rated as 50 percent disabling; and for a fungus infection of the neck, buttocks, groin, leg, feet, and toenails, rated as 10 percent disabling; and his combined service-connected disability rating is 60 percent. Therefore, it is clear that the veteran does not meet the schedular requirements necessary for the assignment of a total rating under 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.25 (2001). Since he does not satisfy the percentage requirements of 38 C.F.R. § 4.16(a), any entitlement to the benefit must be established under 38 C.F.R. § 4.16(b). The issue is whether his service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage."). Moore v. Derwinski, 1 Vet. App. 356 (1991). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board finds that the preponderance of the evidence in this case is against a finding that the veteran's service- connected disabilities render him unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities. In addition, the record does not establish any factor which takes this case outside the norm. The veteran's education and occupational history reflect a number of areas of potentially gainful employment, and the record shows that he is currently attending law school and passing his courses, and that he is generally pleased with his life and states that he is doing well. As noted by a VA psychiatrist, the fact that the veteran is attending law school suggests that he is not unemployable, and further indicates that the veteran himself does not believe that he is unemployable. His success in pursuing a career in law through appropriate education, and the finding that his training for that purpose is feasible, as shown by his receipt of VA VR &E (Chapter 31) educational benefits, further militates against a conclusion that the veteran is unemployable. Based upon the foregoing, and for the reasons and bases stated, the Board finds that the preponderance of the evidence in this case is against the finding that the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Accordingly, that appeal is denied. ORDER Service connection for allergic rhinitis is denied. Service connection for a disability manifested by sneezing, sinus discomfort, loss of smell, a metallic taste, and nose and throat itching, claimed as an undiagnosed illness, is denied. Entitlement to a rating in excess of 10 percent for a fungus infection of the neck, groin, legs, feet, and toenails is denied. Entitlement to a total disability rating based on unemployability due to service connected disabilities is denied. U. R. POWELL Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.