Citation Nr: 0811805 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 05-13 725 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for right elbow epicondylitis, including as due to an undiagnosed illness. 2. Entitlement to service connection for left elbow epicondylitis, including as due to an undiagnosed illness. 3. Entitlement to service connection for a right shoulder muscle strain injury, including as due to an undiagnosed illness. 4. Entitlement to service connection for a left shoulder muscle strain injury, including as due to an undiagnosed illness. 5. Entitlement to service connection for chronic fatigue syndrome, including as due to an undiagnosed illness. 6. Entitlement to service connection for skin rash, including as due to an undiagnosed illness. 7. Entitlement to a compensable rating for chorioretinal scars of the left eye, residuals of laser repair of retinal net. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD Amy R. Grasman, Associate Counsel INTRODUCTION The veteran served on active duty from June 1984 to September 1992. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2003 RO decision. A hearing was scheduled at the RO February 2008. The veteran failed to appear for this hearing. The veteran did not demonstrate good cause for his failure to appear for the hearing and did not indicate a desire for another hearing, as such, the Board will continue with appellate review. FINDINGS OF FACT 1. The veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War. 2. The veteran has been diagnosed as having right elbow epicondylitis which is not attributable to service. 3. The veteran has been diagnosed as having left elbow epicondylitis which is not attributable to service. 4. The veteran has been diagnosed as having right shoulder muscle strain which is not attributable to service. 5. The veteran has been diagnosed as having left shoulder muscle strain which is not attributable to service. 6. The veteran has not been diagnosed as having chronic fatigue syndrome. 7. The veteran does not currently have objective signs of a skin problem that have been perceptible to an examining physician with a minimum of a 6-month period of chronicity objective signs or symptoms of a skin rash. 8. On November 8, 2005, prior to the promulgation of a decision in the appeal, the Board received notification from the veteran's authorized representative, that a withdrawal of this appeal is requested as to the issue of entitlement to a compensable rating for chorioretinal scars of the left eye, residuals of laser repair of retinal net. CONCLUSIONS OF LAW 1. Right elbow epicondylitis was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2007). 2. Left elbow epicondylitis was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2007). 3. Right shoulder muscle strain was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2007). 4. Left shoulder muscle strain was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2007). 5. Chronic fatigue syndrome was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2007). 6. A skin rash was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2007). 7. The criteria for withdrawal of a Substantive Appeal by the veteran's representative have been met as to the issue of entitlement to a compensable rating for chorioretinal scars of the left eye, residuals of laser repair of retinal net. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2006); 38 C.F.R. §§ 20.202, 20.204 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the VCAA duty to notify was satisfied by way of a letter sent to the appellant in July 2003 that fully addressed all four notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claims and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to the claimed conditions. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service medical records, DD Form 214, private medical records and VA medical records. The veteran was afforded a VA Compensation and Pension Examination in August 2003. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Competency and Credibility The veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Thus, while the veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno. Therefore, he cannot provide a competent opinion regarding diagnosis and causation. However, the Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Barr v. Nicholson, 21 Vet App 303 (2007), the Court indicated that varicose veins was a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." Thus, the veteran's lay testimony regarding varicose vein symptomatology in service represented competent evidence. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See Barr. The issues do not involve simple diagnoses. See Jandreau. The claimant is not competent to provide more than simple medical observations. He is not competent to provide diagnoses in this case nor is he competent to provide a complex medical opinion regarding the etiology of the claimed disabilities. See Barr. Thus, the veteran's lay assertions are not competent or sufficient. Service Connection Service connection may be granted for 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, 3.304. Further, VA regulation provides that, with chronic disease shown as such in service (or within an applicable presumptive period under section 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of an evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 38 C.F.R. § 3.303(b). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the inservice injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). Subject to various conditions, service connection may also be granted for a disability due to undiagnosed illness of a veteran who served in the Southwest Asia Theater of Operations during the Persian Gulf War. Among the requirements are that there are objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as fatigue, signs or symptoms involving the skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper and lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. The illness must become manifest during either active service in the Southwest Asia theater of Operations during the Persian Gulf War or to a degree of 10 percent or more, under the appropriate diagnostic code of 38 C.F.R. Part 4, not later than December 31, 2011. See 71 Fed. Reg. 75,669 (Dec. 18, 2006). By history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. There must be objective signs that are perceptible to an examining physician and other non-medical indicators that are capable of independent verification. There must be a minimum of a six-month period of chronicity. There must be no affirmative evidence that relates the undiagnosed illness to a cause other than being in the Southwest Asia Theater of Operations during the Persian Gulf War. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. VAOPGCPREC 8-98 (Aug. 3, 1998) (cited at 63 Fed. Reg. 56,703 (Oct. 22, 1998). For purposes of this section, a qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A § 1117(d) warrants a presumption of service-connection. 38 C.F.R. § 3.317(a)(2)(i). For purposes of this section, the term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). For purposes of this section, "objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). For purposes of this section, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). To qualify for compensation under above-indicated provisions, "Persian Gulf veteran" is defined as "a veteran who served on active military, naval or air service in the Southwest Asia Theater of Operations during the Persian Gulf War." 38 C.F.R. § 3.317 (d)(1). "Southwest Asia Theater of Operations" includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317 (d)(2). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). The DD Form 214 indicated that the veteran had service in Southwest Asia from August 1990 to August 1991. He received the Army Commendation Medal, Army Service Ribbon, Army Achievement Medal, Good Conduct Medal, NCO Professional Development Ribbon, the National Defense Service Medal, the Southwest Asia Service Medal with three Stars, Kuwait Liberation Medal, and Expert Marksman Badge (M16 Rifle). Based on the foregoing, the Board finds that the veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War and meets the definition of a "Persian Gulf veteran." The service medical records are negative for complaints, findings, treatment, or diagnosis of disease or injury of the elbow, shoulders, chronic fatigue syndrome, or abnormality of the skin. In a July 1989 periodic examination, the veteran's musculoskeletal system, skin and lymphatic system, and endocrine system were normal. His upper extremities were normal. On his Report of History, the veteran reported that he had no swollen and painful joints; skin diseases; arthritis, rheumatism or bursitis; bone, joint, or other deformity; or painful or trick shoulder or elbow. The veteran was examined prior to separation in August 1992. At that time, the veteran's musculoskeletal system, skin and lymphatic system, and endocrine system were normal. His upper extremities were normal. On his Report of History, the veteran reported that he had no swollen and painful joints; skin diseases; arthritis, rheumatism or bursitis; bone, joint, or other deformity; or painful or trick shoulder or elbow. Post-service, a VA medical records dated in February 1995 noted that the veteran had possible bursitis of the elbows. VA medical records dated from 1999 to 2006 reveal that the veteran reported having a knot on his left shoulder in December 1999. It was determined that the knot was a lipoma and it was removed. It was also noted that the veteran had left ulnar neuropathy. In February 2000, the veteran reported elbow numbness. In March 2001, he reported having elbow pain. Also, in March 2001, the veteran indicated that he had a rash on his face which he had experienced on and off since his Gulf War service. He reported that he had been told that it was due to spider bites. The veteran also reported that he had a papular rash on his extremities in March 2001. No rash was specifically noted on this examination. In private medical records in October 2003, the veteran complained of a skin rash, but the examination of the skin was normal texture without significant lesions. VA records dated in February 2006 noted that the veteran had right lateral epicondylitis. In June 2006, it was noted that the veteran's skin on his hands was normal. The veteran was also afforded multiple VA examinations in August 2003. The veteran was diagnosed as having epicondylitis of the elbows and muscle strain of the shoulders. The veteran complained of having fatigue and insomnia, but was not diagnosed as having chronic fatigue syndrome. It was noted that it was not known if he had sleep apnea. There was no evidence of a skin rash. The competent evidence establishes that the veteran currently has diagnosed elbow and shoulder disabilities. Specifically, he has been diagnosed as having bilateral elbow epicondylitis and bilateral shoulder muscle strain. Thus, the veteran has known clinical diagnoses. As such, the special provisions pertaining to undiagnosed illnesses are not applicable to this issue and service connection may not be granted on that basis. See 38 C.F.R. § 3.317. In cases where a veteran applies for service connection under 38 C.F.R. § 3.317, but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. §§ 1110 and 1131 is warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Direct service connection for the diagnosed bilateral elbow and bilateral shoulder disabilities is not warranted. The service medical records reflect no complaints, findings, treatment, or diagnosis of an elbow or shoulder disease or injury. On examination, the upper extremities were normal and the musculoskeletal system was normal. The silence and the normal findings constitute negative evidence. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). There were no complaints of elbow symptoms until 1995 and of shoulder symptoms until the 2000's. There is no competent evidence linking the current diagnoses to service. As noted, the veteran is not competent to make such a medical assessment. Despite the veteran's contentions that he had elbow and shoulder problems since service, the record is devoid of supporting evidence. In essence, the veteran's assertions of chronicity and continuity are unsupported. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (normal medical findings at the time of separation from service, as well as absence of any medical records of a diagnosis or treatment for many years after service, is probative evidence against a claim.). Accordingly, service connection is not warranted for bilateral elbow epicondylitis or bilateral shoulder muscle strain. With regard to chronic fatigue syndrome, the veteran does not have a diagnosis of chronic fatigue syndrome. He complains of fatigue and insomnia, but his claim is specifically for chronic fatigue syndrome. He does not have that disorder. A claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the inservice injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). The Court has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated, "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the absence of proof of a present disability, there can be no valid claim. Rabideau v. Derwinski, 2 Vet. App. 141, 143- 44 (1992). Thus, the claim of service connection for chronic fatigue syndrome must fail. With regard to a skin rash, the veteran has intermittently reported having a rash on his face and extremities. In order for service connection to be granted for undiagnosed illness of the skin, there must be objective signs that are perceptible to an examining physician and other non-medical indicators that are capable of independent verification. There must be a minimum of a 6-month period of chronicity. The veteran is competent to report a rash. However, there must also be objective signs that are perceptible to an examining physician and other non-medical indicators that are capable of independent verification. In this case, there is a voluminous record which notes occasional reports, made by the veteran, of a skin rash. There is no 6-month period of chronicity. Although the veteran indicated that a skin rash existed since his Persian Gulf service, his report of such is not supported in the VA medical records which have documented consistent and regular treatment of medical problems spanning over at least a 7 year period. His contentions of a continuous skin problem are therefore not substantiated and inconsistent with the record. As such, they are not credible with regard to their alleged continuous nature. Thus, the veteran does not currently have objective signs of a skin problem that have been perceptible to an examining physician with a minimum of a 6-month period of chronicity. Thus, while he may occasionally suffer from a rash, he does not meet all the criteria necessary for the Persian Gulf War presumption of service connection to apply. With regard to direct service connection, there is no currently diagnosed skin disorder. Thus, the claim of service connection on a direct basis must fail for the lack of a current diagnosis. Further, even though the veteran has made complaints of having a skin rash, there is also no competent evidence attributing those skin complaints to service. Accordingly, service connection is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the veteran's claims, and they must be denied. Entitlement to a compensable rating for chorioretinal scars of the left eye, residuals of laser repair of retinal net Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. The veteran has withdrawn his appeal as to this issue, and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal on this issue and it is dismissed. ORDER Service connection for right elbow epicondylitis, including as due to an undiagnosed illness is denied. Service connection for left elbow epicondylitis, including as due to an undiagnosed illness is denied. Service connection for right shoulder muscle strain, including as due to an undiagnosed illness is denied. Service connection for left shoulder muscle strain, including as due to an undiagnosed illness is denied. Service connection for chronic fatigue syndrome, including as due to an undiagnosed illness is denied. Service connection for skin rash including as due to an undiagnosed illness is denied. The appeal is dismissed as to the issue of entitlement to a compensable rating for chorioretinal scars of the left eye, residuals of laser repair of retinal net. ____________________________________________ J. CONNOLLY JEVTICH. Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs