Citation Nr: 1205135 Decision Date: 02/10/12 Archive Date: 02/23/12 DOCKET NO. 10-06 965 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for an acquired psychiatric disorder. 3. Entitlement to service connection for a left hand disorder. 4. Entitlement to service connection for a right hand disorder. 5. Entitlement to service connection for tinea pedis (claimed as foot fungus), to include as secondary to the service-connected ingrown toenails. 6. Entitlement to service connection for a left hip disorder, to include as secondary to the service-connected back disability. 7. Entitlement to service connection for residuals of anterior skull damage. 8. Entitlement to service connection for allergies. 9. Entitlement to an initial rating in excess of 10 percent for status post meniscus tear of the left knee (left knee disability). 10. Entitlement to an initial rating in excess of 10 percent for mechanical thoracolumbar spine without radiculopathy (back disability). 11. Entitlement to an initial compensable rating for hypertension. 12. Entitlement to an initial compensable rating for bilateral ingrown toenails. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1987 to July 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The Veteran testified before the undersigned Veterans Law Judge in February 2011, and a copy of the hearing transcript has been associated with the claims file. As a preliminary matter, the Board will clarify the issues on appeal. The Veteran initially appealed from 17 issues addressed in the January 2008 and February 2008 rating decisions. Specifically, in a June 2008 notice of disagreement, he disputed the denial of 12 service connection claims: for right and left shoulder disorders (claimed as a sprain), a left hip disorder, right and left hand disorders (claimed as swelling), a left ankle sprain, anterior skull damage, allergies, tinea pedis (claimed as foot fungus), skin warts on the right hand, hearing loss, and an acquired psychiatric disorder (characterized as mood disorder, adjustment disorder with mixed anxiety and depressed mood, and/or occupational stress). The Veteran also disputed the denial of 5 initial evaluations assigned for service-connected disabilities: for a left knee disorder, a back disability, hypertension, residuals of body shrapnel wounds on the left side, and bilateral ingrown toenails. Two statements of the case (SOC's) were issued in January 2010 which, together, addressed all of these issues. However, in his February 2010 substantive appeal (VA Form 9), the Veteran limited to his appeal to the Board to 9 issues: allergies, hypertension, hearing loss, tinea pedis or foot fungus, a back disability, bilateral ingrown toenails, a left hip disorder, and left and right hand disorders. No other communication was received from the Veteran, or any authorized individual, that may be construed as a substantive appeal as to the other issues that were initially disputed. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.302 (2011). However, the undersigned Veterans Law Judge indicated that three additional issues were perfected for appeal, and the Veteran testified as to such issues, during the February 2011 Travel Board hearing: service connection for an acquired psychiatric disorder, service connection for residuals of anterior skull damage, and a higher initial rating for the left knee disability. A timely substantive appeal is not a jurisdictional requirement, and this requirement may be waived implicitly or explicitly, such as where the actions by the RO or the Board indicate that an appeal was perfected. Percy v. Shinseki, 23 Vet. App. 37, 44-47 (2009). Accordingly, under the circumstances of this case, these three additional issues remain on appeal and are currently under the Board's jurisdiction. In contrast, the Veteran stated on the record during the February 2011 Board hearing, as well as in a February 2011 statement, that he wished to withdraw the appeal as to the issues of service connection for left and right shoulder disorders, skin warts on the hands, and a left ankle disorder, as well as for a compensable rating for residuals of body shrapnel wounds on the left side. However, as noted above, the Veteran never filed a substantive appeal as to these issues. He also did not present testimony as to these issues, and he was not led to believe that they were perfected for appeal. As such, these issues were never under the Board's jurisdiction, and there was no need to formally withdraw the appeal. The Veteran also withdrew the appeal as to service connection for hearing loss, which was perfected to the Board and, therefore, is dismissed herein, as discussed below. In summary, as of the last adjudication by the agency of original jurisdiction (AOJ), the 12 issues as listed on the first page of this decision were under Board's jurisdiction. The Veteran submitted additional evidence in support of his claims at the Travel Board hearing in February 2011. As the Veteran also submitted a waiver of review of such evidence by the AOJ, the Board may properly consider such evidence at this time. See 38 C.F.R. §§ 20.800, 20.1304(c) (2011). The issues of entitlement to service connection for a left hip disorder, left and right hand disorders, and allergies; and entitlement to a higher initial evaluation for a left knee disability, back disability, hypertension, and bilateral ingrown toenails are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. On February 3, 2011, prior to the promulgation of a decision in the appeal, the Veteran testified on the record and also submitted a written statement requesting to withdraw the appeal as to the issue of service connection for hearing loss. 2. The Veteran has already been granted service connection for headaches, and there is no other current disability related to his skull injury in service. 3. The Veteran was diagnosed with adjustment disorder and treated for depression and anxiety or stress during service, he was diagnosed with adjustment disorder with mixed anxiety and depressed mood a few months after service (during the appeal), and resolving all reasonable doubt in his favor, such disability was incurred as a result of service or as secondary to the service-connected low back pain. 4. The Veteran was diagnosed and treated for bilateral tinea pedis during service and, resolving all reasonable doubt in his favor, such disability was chronic and has manifested by persistent and recurring symptomatology since service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran have been met with respect to the issue of entitlement to service connection for hearing loss. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2011). 2. The criteria for service connection for residuals of anterior skull damage have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011). 3. The criteria for service connection for the acquired psychiatric disorder of adjustment disorder with mixed anxiety and depressed mood have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2011). 4. The criteria for service connection for bilateral tinea pedis have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Dismissal The Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105(d)(5); 38 C.F.R. § 20.202. At any time before the Board promulgates a decision, an appellant or an appellant's authorized representative may withdraw a substantive appeal as to any or all issues, either on the record at a hearing or in writing. 38 C.F.R. § 20.204. In the present case, the Veteran initially perfected an appeal as to service connection for hearing loss. However, he testified on the record during the February 3, 2011 hearing that he wished to withdraw the appeal as to this issue. He also submitted a written statement to that effect on the same date. These requests were in accordance with in accordance with 38 C.F.R. § 20.204(a) and (b), and they were received by the Board prior to the promulgation of a decision on the appeal. As such, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction and the appeal is dismissed without prejudice as to this issue. See 38 C.F.R. § 20.202. As discussed above, the Veteran also expressed a desire in February 2011 to withdraw the appeal as to the issues of service connection for right and left shoulder disorders, skin warts, and a left ankle disorder, as well as for a higher initial evaluation for residuals of body shrapnel to the left side. However, these issues were not perfected for appeal and, therefore, a formal dismissal is not warranted. II. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Proper VCAA notice must be provided to a claimant prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). In this case, the Board's decision herein to grant service connection for the acquired psychiatric disorder of adjustment disorder with mixed anxiety and depressed mood and for bilateral tinea pedis constitutes a full grant of these benefits sought on appeal. As such, no further action is necessary to comply with the VCAA and implementing regulations in this regard. With respect to residuals of anterior skull damage, the Veteran was advised in an October 2007 letter, prior to the initial unfavorable decision, of the evidence and information necessary to substantiate his service connection claims, the responsibilities of the Veteran and VA in obtaining such evidence, and the evidence and information necessary to establish a disability rating and an effective date, in accordance with Dingess/Hartman. Concerning the duty to assist, the Veteran's service treatment records and pertinent VA and private treatment records have been obtained and considered. There is no indication that any pertinent treatment records remain outstanding with respect to the issues decided herein. Although the last VA treatment records are dated in 2008, there is no indication that any outstanding records would contain any information in support of the claim for residuals of anterior skull damage. Rather, the Veteran has not reported any specific treatment other than for headaches, and he described essentially the same symptoms during the February 2011 hearing as at the VA examinations in 2007 and 2008. As such, the Veteran is not prejudiced by the absence of any outstanding treatment records. Additionally, there is no indication that the Veteran receives benefits from the Social Security Administration pertaining to his claimed disabilities. The Veteran was also afforded VA examinations in October 2007 (general medical) and April 2008 (neurological) concerning residuals of anterior skull damage. Neither the Veteran nor his representative have argued that such examination is inadequate for adjudication purposes, and a review of the examination report reveals no inadequacies. In the circumstances of this case, a remand as to these issues would serve no useful purpose, as it would unnecessarily impose additional burdens on VA with no benefit to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA has satisfied its duties to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceedings. As such, the Veteran will not be prejudiced by a decision on the merits of his claims. III. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Where a disease is diagnosed after discharge, service connection may be granted when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Generally, to establish direct service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disability. 38 C.F.R. § 3.304; see also Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Hickson v. West, 12 Vet. App. 247, 253 (1999). However, under C.F.R. § 3.303(b), the nexus element may be established based on medical or lay evidence where there is competent evidence of continuity of symptomatology. Barr, 21 Vet. App. at 307. Additionally, service connection may be granted on a secondary basis for a disability that is proximately caused or aggravated (worsened beyond its normal progression) by a service-connected disability. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In this case, concerning the issue of service connection for residuals of anterior skull damage, the Veteran has primarily complained of headaches and some slight pain or tenderness in the area of injury. He testified in February 2011 that he hit his head on the left side during service, which resulted in a knot with a small laceration that was treated with tape, but not with sutures or stitches. He had some dizziness, but no loss of consciousness, and no x-ray was performed. This is generally consistent with the other evidence of record, to include the service treatment records, and the May 2007 and April 2008 VA examination reports. After the initial denial of service connection for residuals of anterior skull damage, the Veteran was granted service connection for migraine headaches in a June 2010 rating decision. However, there is no evidence of a scar or any other disability related to the skull injury other than headaches. See, e.g., May 2007 and April 2008 VA examination reports; April 2008 private MRI report (showing a negative brain study). As there is no present disability (other than the already service-connected headaches), this service connection claim must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). With respect to an acquired psychiatric disorder, the Veteran testified during the February 2011 hearing that he was treated for depression during service and was diagnosed after service. He thought that his depression may have been due to marital problems, the explosion that resulted in his shrapnel wounds, and multiple deployments. The Veteran denied any current treatment for depression and indicated that he was unsure if he was currently depressed. He stated that his mood was "up and down" and he did not think he needed medications. A review of the Veteran's service treatment records shows treatment for mental health symptoms on several occasions, including during the last several years of service. For example, at behavioral health consultations in April and May 2004, the Veteran reported a stressful situation at work, and his mood was noted to be irritable or mildly anxious. The provider discussed stress management. In April 2006, the Veteran reported sleep difficulties and ongoing back pain issues, as well as low energy, low appetite, sex drive that was up and down, irritable mood, and that he was definitely stressed out. The provider diagnosed adjustment disorder and prescribed nortriptyline (aventyl), which the Board notes is for depression. In a March 2007 record, the Veteran reported feeling down, helpless, panicky, or anxious, and the provider again discussed stress and anxiety. There are also several other indications of sleep problems associated with back pain. The Veteran was afforded a VA mental health examination in October 2007. At that time, he reported emotional symptoms including depressed mood, anxiety, feelings of frustration and anger relative to his military experiences and his family, sleep disturbance, and relationship problems with his step-daughter. The Veteran stated that such symptoms began in 2003 and had continued to the present, and that he often felt extremely frustrated and angry in the latter years of his career. The Veteran also reported that his chronic sleep disturbance is primarily related to back pain, and that the lack of sleep contributes to his irritability and frustration. The examiner diagnosed the Veteran with mood disorder not otherwise specified (NOS), and adjustment disorder with mixed anxiety and depression. No opinion was offered as to whether such conditions were incurred or aggravated by service. However, the examiner summarized the psychosocial stressors as physical health problems, chronic pain, sleep disturbance with related fatigue, unemployment, family stressors, and adjustment to civilian life from military career. The only currently available post-service treatment records are dated through 2008. The Board notes that a December 2007 VA depression screen and PTSD screen were both negative, as the Veteran responded "no" to all screening questions. However, in a more detailed VA mental health screen at that time, the Veteran reported symptoms including major difficulties in readjusting since returning home, intense verbal arguments, significant sleep problems, feeling bad about himself or that he is a failure, and increased stress since returning from deployment in Iraq. Based on the foregoing evidence, and resolving all reasonable doubt in the Veteran's favor, the Board finds that he is entitled to service connection for adjustment disorder with mixed anxiety and depressed mood. Specifically, as discussed above, the Veteran was diagnosed with adjustment disorder and treated for depression and anxiety or stress in the last several years of service. This is consistent with his report of continuous emotional problems since 2003 during the October 2007 VA examination. Further, the VA examiner also diagnosed adjustment disorder with mixed anxiety and depressed mood. Although a clear nexus opinion was not provided, the examiner noted psychosocial stressors including adjustment from service and physical problems, and the Veteran reported sleep problems due to back pain, with increased irritability and frustration as a result. Significantly, the Veteran is service-connected for his low back pain, and he also had documented sleep problems due to back pain during service. Regardless of whether the Veteran still has a mental health disability, he was diagnosed with adjustment disorder with mixed anxiety and depressed mood shortly after he filed his claim for service connection. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (stating that service connection may be granted where a disability is shown at any time during the appeal, even if the most recent medical evidence is negative). Further, when applying the benefit of the doubt doctrine, the evidence reflects that such disability was incurred as a result of the Veteran's military service, or is secondary to his service-connected low back disability. Accordingly, service connection is warranted for this acquired psychiatric disorder. With respect to a skin disorder of the feet, to include tinea pedis, the Veteran testified during the February 2011 hearing that he began to have problems with foot fungus after having ingrown toenails in service. He stated that his providers told him that he would get a fungus every time if he did not keep the nail cut, and he was provided a cream. The Veteran further stated that he now uses an over-the-counter cream, and that the fungus appears every time that he lets the nail grow out. He also referred only to the fungus under the ingrown toenail with treatment by cream in his February 2010 substantive appeal. However, in his July 2007 claim, the Veteran asserted that he had foot fungus and still used a foot cream due to no ventilation in military boots during service and also the ingrown toenail problems. During the October 2007 VA examination, the Veteran reported developing a fungus infection on both feet during service that was treated with a topical cream. He further reported having a break out of foot fungus depending on how much he wears his shoes during the day, with itching and burning between the toes during a flare-up. The Veteran denied any current treatment for this condition. The examiner diagnosed no disability, as the Veteran did not have any manifestations at that particular time, and also did not provide an etiological opinion. However, there is evidence of treatment and diagnosis of bilateral tinea pedis during service. For example, a May 2001 record notes complaints of right toenail problems including the ingrown toenail, as well as dry scaling along the top and bottom and between the toes. There was objective right foot scaling, and the diagnosis was rule out tinea pedis. In January 2006, the Veteran complained of dry, cracking feet that occurs every year, with no relief from bacitracin, fungal sprays, etc. There was objective cracking and flaking skin over the soles of the feet bilaterally with some erythema. The Veteran was diagnosed with dermatophytosis tinea pedis and prescribed a topical cream for treatment. After service, a July 2008 VA medication reconciliation notes the use of anti-fungal foot cream. Considering all lay and medical evidence of record, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for bilateral tinea pedis. In particular, his reports of persistent and recurring symptomatology on the feet, treated with a topical cream, are generally consistent with the available medical evidence. As noted above, the Veteran was diagnosed with tinea pedis during service based on such symptoms, and post-service medical records confirm the continued use of anti-fungal foot cream. Although the October 2007 VA examiner found no tinea pedis at that time, the Veteran has competently and credibly reported that his symptoms recur on a persistent basis. Further, although there is no clear etiological opinion, the record demonstrates a chronic disability with continuous symptomatology that began during service and has continued since that time. As such, service connection is warranted. ORDER The appeal as to the issue of service connection for hearing loss is dismissed. Service connection for residuals of anterior skull damage is denied. Service connection for the acquired psychiatric disorder of adjustment disorder with mixed anxiety and depressed mood is granted. Service connection for bilateral tinea pedis is granted. REMAND Further development is necessary for the remaining claims. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that the Veteran is afforded every possible consideration. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. First, the Veteran was last examined with respect to his service-connected left knee disability, back disability, hypertension, and bilateral ingrown toenails in October 2007. It appears that pertinent records remain outstanding, and that these conditions may have worsened in severity. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993) (VA's duty to assist includes providing a thorough and contemporaneous medical examination, which takes into account prior medical evaluations and treatment). In particular, the Veteran has referenced VA treatment in Las Cruces, Alamogordo, and El Paso, and the last VA treatment records (which are from El Paso) are dated in February 2008. The Veteran also testified to continued private chiropractic treatment. He has submitted records from Mitchell Chiropractic dated in 2007, and from Precure Chiropractic dated through December 2010. As such, a remand is necessary to obtain any pertinent outstanding VA or private treatment records, and to afford the Veteran a new VA examination to determine the current severity of his service-connected disabilities on appeal. Additionally, the Board finds that treatment records and a new VA examination should be obtained with respect to the remaining service connection claims. First, the Veteran asserts that he has been diagnosed with a left hip disability, manifested by symptoms including pain, and that this was either directly caused by service or is secondary to the service-connected back disability. There are several notations of left hip pain during service. For example, a July 2006 record notes chronic left hip pain for over three years that was only partially relieved by Percocet and was not improved after physical therapy. After service, an August 2009 private chiropractic record reflects complaints of left hip pain for 9-10 years. Private chiropractic records also indicate swelling and pain to palpation, with adjustments to the left and right ilium, but with a diagnosis of back problems. The Board notes that a July 2006 MRI during service was interpreted to show a suggestion of moderate osteoarthritis in the left hip. However, x-rays of the left hip in November 2007 (in connection with the VA examination) were interpreted as essentially normal. As such, while it is clear that the Veteran had left hip problems during service, it is unclear whether there is a separate left hip disability, including but not limited to arthritis, or whether any left hip symptoms are only a manifestation of the service-connected low back disability. Therefore, the Veteran should be afforded a VA examination to determine the nature and etiology of any current left hip disorder. Concerning a bilateral hand disorder, the Veteran asserts that he has had pain, stiffness, and especially swelling since service. He believes this may be due to cuts on the hands while handling chemicals, etc. related to weapons maintenance duties, or to an injury where a bomb rack or aircraft pylon fell on his hand. Service providers were unable to come to a definitive diagnosis, but the Veteran believes that he may have arthritis, tendonitis, or carpal tunnel syndrome. The Veteran's representative has also asserted that the bilateral hand condition may be due to undiagnosed illness from service in the Persian Gulf. See, e.g., July 2007 claim, June 2008 notice of disagreement, February 2011 hearing transcript. The October 2007 VA examiner found no current right or left hand disorder. However, the Veteran was treated for bilateral hand symptoms during service. An October 1986 periodic examination noted transient edema in the hands post trauma with no sequelae. There are also repeated physical therapy and evaluations in the last several years of service. For example, a July 2005 record reflects complaints of right hand pain. The Veteran reported dropping a bomb rack on the top of the hand three years ago, but that his hand was now hurting at a different location (primarily the index joint) and all of the joints hurt when he squeezed the hand. There was objective tenderness, and the assessment was tendonitis. An October 2005 record then reflects bilateral finger joint pain, stiffness, and swelling with an onset date of 2-3 months ago. A March 2006 record notes continued swelling of the hands, stating that they have been evaluated as "musician's hands." Numerous tests were conducted from 2005 to 2006, including a negative MRI and an abnormal bone scan, but there was no definitive diagnosis for the cause of the Veteran's bilateral hand symptoms. In April 2006, a treating rheumatologist stated that the remainder of the arthropathy labs were negative, and there was no definitive diagnosis at that point to explain the complaints of hand pain and abnormal bone scan. There is also treatment after service. For example, an April 2008 private record from Dr. McDanald indicates treatment for severe hand pains with associated swelling that had been ongoing for three years, although previous x-rays were reviewed and interpreted as normal. This provider noted that the Veteran's symptomatology was suggestive of inflammatory disease, although there were no objective changes of inflammation. The Veteran was to return to the clinic after taking corticosteroids to see if there was any inflammatory component to the condition, but there are no further records in the claims file from this provider. Therefore, as with the left hip disorder, there is an indication of chronic bilateral hand symptomatology that started during service, but the nature of the condition is unclear. The last VA examination and pertinent medical evidence are several years old. However, there is a reasonable possibility that a diagnosis and etiological opinion may now be provided. As such, any pertinent, outstanding records should be obtained. Thereafter, the Veteran should be scheduled for a VA examination to determine the nature and etiology of his chronic bilateral hand complaints. The Board notes that the Veteran is also service-connected for hypertension, which can be manifested by swelling in the extremities. The nature and etiology of any allergies during the course of the appeal is also unclear. In this regard, the Veteran testified during the February 2011 hearing that he was given medications allergies for 4-5 years before retirement from service, but they were not documented until May 2007. He further stated that service providers could not determine his specific allergies at that time. The Veteran reported symptoms of runny nose, coughing, and blurry or watery eyes, which were worse with some seasons. He further stated that another allergy test was conducted at a New Mexico VA facility a few months prior to the hearing. Similarly, the Veteran stated in his February 2010 substantive appeal that he was prescribed Flonase and Zyrtec for recurring allergies 2-3 years before his retirement from service. The Veteran denied having allergies or hayfever at several points during service, including in March 2004 and March 2006. However, he complained of his left eye watering a lot in May 2007 and was prescribed cetirizine for epiphora of the left eye and referred to ophthalmology. Optometry and ophthalmology records throughout service, including in March 2004, indicate that the Veteran wore corrective lenses for nearsightedness and had surgery on the left eye at age 13 or 14. There is no reference to any diagnosed allergies. During the October 2007 VA examination, the Veteran stated that he did not know if he was allergic to anything, but he had a runny nose all the time and was currently taking Zyrtec for this with some relief. A November 2007 x-ray of the sinuses showed normal aeration of the sinuses, with a 1 cm rounded density in the right base that was noted to be probably bony, or part of a tooth structure. No sinus or allergy condition was diagnosed at that time. Additionally, there is no mention of allergies or runny nose, etc. in the currently available VA records, but the Veteran's active medications included Zyrtec (cetirizine) and Flonase (fluticasone) as of July 2008. It is unclear when these were prescribed or whether they were for allergies. Accordingly, any outstanding VA treatment records should be obtained, to include allergy testing. Thereafter, the Veteran should be afforded a VA examination to determine the nature and etiology of any current allergies, to include whether there is any relation to the May 2007 prescription and treatment for left eye watering. In summary, upon remand, the Veteran should be requested to identify any outstanding treatment records pertaining to his hands, left hip, allergies, left knee, back, hypertension, and ingrown toenails. He should also provide a release for any non-VA records, to include from Dr. McDanald and any chiropractors. After all identified, available records have been associated with the claims file, the Veteran should be afforded the appropriate VA examinations to determine the current severity of his service-connected left knee disability, back disability, hypertension, and ingrown toenails. In addition, he should be scheduled for the appropriate VA examinations to determine the nature and etiology of his bilateral hand and left hip symptomatology, as well as any allergies. Each examiner should clarify the current diagnoses based on a thorough evaluation (including any necessary testing) and review of all pertinent evidence. Each examiner should also offer an opinion as to whether any currently diagnosed disability was incurred or aggravated by service, or was proximately caused or aggravated by any service-connected disability. With respect to the arguments concerning undiagnosed illness, service connection may be granted to a veteran of the Southwest Asia theater of the Persian Gulf War who exhibits objective indications of a chronic disability resulting from an undiagnosed illness (i.e., one that cannot be associated with a diagnosis) or a medically unexplained chronic multi-symptom illness (including but not limited to chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or resulting from an illness or combination of illnesses manifested by one or more signs or symptoms. The signs and symptoms which may be manifestations of undiagnosed illness or a chronic multi-symptom illness include, but are not limited to: (1) fatigue, (2) signs or symptoms involving the skin, (3) headaches, (4) muscle pain, (5) joint pain, (6) neurologic signs or symptoms, (7) neuropsychological signs or symptoms, (8) signs or symptoms involving the respiratory system (upper or lower), (9) sleep disturbances, (10) gastrointestinal signs or symptoms, (11) cardiovascular signs or symptoms, (12) abnormal weight loss, or (13) menstrual disorders. 38 U.S.C.A. §§ 1117, 1118; 38 C.F.R. § 3.317. The Veteran served in the Southwest Asia theater of the Persian Gulf War for 30 days in January 1994. As such, he had qualifying service for consideration under 38 C.F.R. § 3.317. Upon remand, he should be notified of the requirements to establish service connection on such basis. The VA examiner(s) should also consider these regulations in offering an opinion as to the etiology of his conditions. Development and readjudication upon remand should reflect consideration of all lay and medical evidence of record. In this regard, the Veteran, as a lay person, is competent to testify as to a lack of observable symptoms prior to service, continuous symptoms after service, and receipt of treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Barr, 21 Vet. App. at 307-08. The Board and the AOJ, as fact finders, retain the discretion to make credibility determinations and weigh the lay and medical evidence submitted. However, competent lay evidence may be rejected only if it is deemed not credible. Further, lay evidence cannot be deemed not credible solely due to the absence of contemporaneous medical evidence. The absence of such records may, however, be weighed with the other evidence of record. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with notice as to the evidence and information required to substantiate a claim for service connection based on undiagnosed illness under 38 C.F.R. § 3.317. Allow an appropriate period of time for response. 2. Request the Veteran to identify any outstanding treatment records pertaining to each of his claimed disabilities, and to complete an authorization and release (VA Form 21-4142) for any non-VA records. Thereafter, request copies of any identified, outstanding records for which the necessary authorization is received, specifically to include any outstanding records from Procure Chiropractic, Mitchell Chiropractic, or Dr. McDanald; and any VA treatment records from El Paso, Las Cruces, or Alamogordo dated since July 2007. Copies of all diagnostic tests, to include any x-rays, MRIs, or allergy testing, should be requested. All requests and all responses should be documented, and all records received should be associated with the claims file. If any such records cannot be obtained after appropriate efforts, the Veteran should be notified of the missing records, the attempts made to obtain them, and allowed an opportunity to provide the records. 3. After completing the above-described development, schedule the Veteran for the appropriate VA examination(s) to determine the current severity of his left knee disability, back disability, hypertension, and bilateral ingrown toenails; as well as the nature and etiology of any left hip disorder, left or right hand disorder, and allergies. If possible, each examination should be scheduled in El Paso, Texas. The entire claims file and a copy of this remand should be made available to each examiner for review, and such review should be noted in the report. All necessary tests and studies should be conducted. The examiners should be provided with a copy of 38 C.F.R. § 3.317 to aid in determining whether there is an undiagnosed illness for VA purposes. Each examiner is requested to respond to the following, as appropriate: (a) Measure and record any subjective or objective manifestations of the service-connected left knee disability, back disability, hypertension, and bilateral ingrown toenails. (b) With respect to the bilateral hands: (1) Is there a diagnosable right or left hand disorder, manifested by symptoms including pain, stiffness, and/or swelling (as reported and documented in the service and post-service treatment records)? If so, is such disorder merely a manifestation or symptom of a service-connected disability, to include hypertension? Or rather, is it a separate and distinct disability? (2) Are the Veteran's right or left hand complaints due to an undiagnosed illness, meaning that they cannot be associated with any known diagnostic entity? Symptom-based "diagnoses" are not considered as diagnosed conditions for these purposes. (c) Identify any current left hip disability, including but not limited to arthritis. Are any left hip symptoms (as reported and documented in the service and post-service treatment records) a manifestation or symptom of the service-connected back disability? Or rather, is there a separate and distinct left hip disability? (d) Does the Veteran currently have allergies? If so, is it at least as likely as not (probability of 50 percent or more) that such disorder was incurred in or aggravated by military service? In particular, is there any relation between the current allergies and the treatment for excessive watering of the left eye (including a prescription for certirizine) in May 2007? (e) In responding to each of the above questions, a complete rationale must be provided for any opinion offered. The examiner(s) should consider all lay and medical evidence of record. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the report and explain why a non-speculative opinion cannot be offered. 4. After completing any further development as may be indicated by any response received upon remand, readjudicate the claims based on all lay and medical evidence of record. All applicable diagnostic codes should be considered for the increased rating claims. All raised theories should be considered for service connection, to include both direct and secondary service connection, presumptive service connection for chronic disability, and undiagnosed illness under 38 C.F.R. § 3.317, as appropriate. 5. If the claims remain denied, issue a supplemental statement of the case to the Veteran and his representative, which addresses all relevant law and all evidence associated with the claims file since the last statement of the case. Allow an appropriate period of time for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs