Citation Nr: 1010508 Decision Date: 03/19/10 Archive Date: 03/31/10 DOCKET NO. 08-25 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a skin disorder. 3. Entitlement to service connection for muscle/joint pain. 4. Entitlement to service connection for depression (claimed as a neuropsychiatric condition and sleep disorder). 5. Entitlement to an initial compensable evaluation for a left ring finger scar. ATTORNEY FOR THE BOARD W. Harryman, Counsel INTRODUCTION The Veteran had active duty service from July 1988 to July 1992 and from January 1999 to May 1999. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. That decision denied service connection for hypertension, a skin disorder, muscle/joint pain, and depression, but the RO did grant service connection for a left ring finger scar and assigned a noncompensable evaluation effective from November 24, 2006. The Veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. The Board notes that the Veteran was previously represented by a private attorney who withdrew his power of attorney to act on the Veteran's behalf in January 2009. The Veteran was notified of the attorney's withdrawal, but the record does not indicate that he has secured the services of another representative. FINDINGS OF FACT 1. The Veteran's hypertension first manifested several years after his separation from his first period of service and has not been shown to be causally or etiologically related to his first period of service or to have increased in severity during his second period of service. 2. The Veteran has not been shown to currently have a skin disorder that is causally or etiologically related to his military service. 3. The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War 4. The Veteran does not have muscle and joint pain that is due to an undiagnosed illness or is otherwise related to service. 5. The Veteran's service-connected left ring finger scar is one inch long, and the available medical evidence shows that the scar has been asymptomatic. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by active service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.303, 3.307, 3.309 (2009). 2. A skin disorder was not incurred in service. 38 U.S.C.A. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). 3. The criteria are not met for service connection for muscle/joint pain. 38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2009). 4. The criteria an initial compensable evaluation for a left ring finger scar have not been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.118, Code 7804 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) 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. With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision 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). Nevertheless, the Veteran in this case is challenging the initial evaluation assigned following the grant of service connection for a left ring finger scar. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. See also VAOPGCPREC 8-2003 (December 22, 2003). Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify has been satisfied with respect to the issue of entitlement to a higher initial evaluation for his status post left carpal and metacarpal fusion. With respect to the claims for service connection, the RO did provide the appellant with notice in January 2007 and May 2007, prior to the initial decision on the claims in September 2007. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met in connection with the claim and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice for the service connection claims were met in this case. The notice letters notified the Veteran of the evidence necessary to substantiate his claims and of the division of responsibilities in obtaining such evidence. The January 2007 letter also explained how disability ratings and effective dates were assigned. In addition, the Board concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records and all identified and available private medical records are in the file. He has not identified any other medical records that are relevant to his claims. The Board does acknowledge that the Veteran's service treatment records for his period of service from January 1999 to May 1999 cannot be located. In accordance with the law and regulations, however, the RO continued its efforts to obtain all relevant medical records until it was reasonably certain that such records did not exist or that further efforts to obtain those records would be futile. In this regard, the RO did request the records from the VA Records Maintenance Center, but those records were incomplete. An entrance physical was received via the Defense Personnel Records Imaging System, and clinical records were received from the National Personnel Records Center. Negative replies were also obtained from the Naval Medical Clinic in Quantico, Virginia, and from the Engineer Maintenance Company in Omaha, Nebraska. The Veteran was notified of the incomplete records and of the specific efforts that the RO had undertaken to attempt to locate those missing records. He was also advised of alternate evidence that could be submitted. Based on the foregoing, the RO made a formal finding on the unavailability of service records and determined that further efforts would be futile. The Board also concludes that VA has done everything reasonably possible to assist the appellant in obtaining his complete service treatment records. The appellant has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. The Board further notes that the Veteran was initially scheduled for VA examinations in April 2008. 38 C.F.R. § 3.159(c)(4)(i) (2009). At the Veteran's request, those examinations were rescheduled in May 2008. However, the Veteran once again requested that they be rescheduled. Ultimately, the examinations were scheduled again in October 2008. Nevertheless, the Veteran failed to report for those examinations, and he has not provided good cause for his failure to report. The Board would point out that the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Based on the foregoing, the Board finds that the record contains sufficient evidence to make a decision on the claims. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. VA has also assisted the Veteran throughout the course of this appeal by providing him with a SOC and a SSOC, which informed him of the laws and regulations relevant to his claims. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Law and Analysis The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). Service connection for certain diseases, such as cardiovascular-renal disease, may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under section 3.310(a) of VA regulations, service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service- connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. Under the provisions of specific legislation enacted to assist veterans of the Persian Gulf War, service connection may be established for a qualifying chronic disability which became manifest either during active 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 December 31, 2011. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1)(i). The term "qualifying chronic disability" means a chronic disability resulting from an undiagnosed illness; a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined as a cluster of signs or symptoms; or, any diagnosed illness that VA determines in regulations warrants a presumption of service-connected. 38 U.S.C.A. § 1117(a)(2). Signs or symptoms that may be a manifestation of an undiagnosed illness or a chronic multisymptom illness include: (1) fatigue, (2) unexplained rashes or other dermatological signs or symptoms, (3) headache, (4) muscle pain, (5) joint pain, (6) neurological signs and symptoms, (7) neuropsychological signs or symptoms, (8) signs or symptoms involving the upper or lower respiratory system, (9) sleep disturbances, (10) gastrointestinal signs or symptoms, (11) cardiovascular signs or symptoms, (12) abnormal weight loss, and (13) menstrual disorders. 38 U.S.C.A. § 1117(g). Among the requirements for service connection for a disability due to an undiagnosed illness is that such disability, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). 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. See 38 C.F.R. § 3.317(c). If signs or symptoms have been attributed to a known clinical diagnosis in the particular veteran's case being considered, service connection may not be provided under the specific provisions pertaining to Persian Gulf veterans. See VAOPGCPREC 8-98 at paras. 4-5 (Aug. 3, 1998). A. Hypertension The Veteran has contended that his high blood pressure began after an operation on his left hand during service. The Veteran's service treatment records do show that he sustained an injury to his left hand during service in June 1991 and the he was hospitalized for approximately two weeks for treatment of that injury. During a subsequent emergency room visit for an unrelated injury, his blood pressure was recorded as 144/100. However, on follow-up two days later, his blood pressure was recorded as 120/82, and in October 1991, it was also noted to be 120/70. At the time of the Veteran's separation examination, his blood pressure was recorded as 138/84. The service treatment records do not contain a diagnosis of hypertension, nor do they indicate that any examiner even considered such a diagnosis. In addition, the report of a Reserve examination in September 1996 records a blood pressure of 110/70; that examiner also did not diagnose hypertension. Parenthetically, the Board notes that the term "hypertension" refers to persistently high arterial blood pressure. Medical authorities have suggested various thresholds ranging from 140 mm. Hg systolic and from 90 mm. Hg diastolic. See Dorland's Illustrated Medical Dictionary 635 (26th ed. 1985). Similarly, for VA rating purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater. The term "isolated systolic hypertension" means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Code 7101, Note 1 (2009). Moreover, the medical evidence of record does not show that the Veteran sought treatment for hypertension immediately following his period of service or for many years thereafter. Therefore, the Board finds that hypertension did not manifest in service or within one thereafter. The earliest diagnosis of hypertension in the medical records is contained in a private treatment report dated in July 1998 at which time the Veteran's blood pressure was 150/100. His hypertension was noted to be uncontrolled on medication. Subsequent private treatment records dated since May 2000 variously note that the hypertension was controlled or that it was uncontrolled and that the Veteran was noncompliant in his taking his antihypertensive medication. The Veteran was scheduled for at least three examinations to determine the etiology of his hypertension, to include whether the disorder may have been aggravated by his second period of service, but he either canceled or failed to report for each of those examinations. The regulations require that when a claimant fails to report for a scheduled examination in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655 (2009). While the Veteran is certainly competent to report his observable symptoms, he is not competent to render a medical determination as to the etiology or date of onset of his hypertension. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992); Jones v. Brown, 7 Vet. App. 134 (1994). Based on the foregoing, the Board finds that the competent medical evidence shows that the Veteran's hypertension first manifested several years after his separation from his first period of active service. It is unclear from the private treatment report in July 1998 whether the Veteran was taking antihypertensive medication prior to that visit, but it appears that medication was initiated at that time. Nevertheless, in September 1996, the Veteran's blood pressure was apparently normal and hypertension was not diagnosed at that time. Moreover, the medical evidence does not show that any examiner has stated or suggested that the Veteran's hypertension is in any way related to the injury or operation in 1991, as contended by the Veteran. Therefore, the Board concludes that the criteria are not met for service connection for hypertension on the basis of direct service incurrence during his first period of service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Further, because the evidence shows that hypertension was not manifest to a compensable degree within one year following the Veteran's separation from his first period of service, service connection also cannot be presumed. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Although the Veteran has not specifically contended that his hypertension was caused by his service-connected left ring finger scar, the Board also notes that no health care provider has indicated or suggested such a relationship. Accordingly, service connection is not warranted on a secondary basis. 38 C.F.R. § 3.310 (2009). Finally, although the service treatment records covering the Veteran's second period of active duty service from January 1999 to May 1999 are missing, the available medical evidence does not show that the Veteran's hypertension worsened or increased in severity during that period of service. While treatment records dated since 2000 indicate that the Veteran's hypertension was at times uncontrolled, that fact was generally attributed to the Veteran's noncompliance with his antihypertensive medication. Therefore, the Board concludes that the criteria are also not met for service connection for hypertension on the basis of aggravation during the Veteran's second period of service. 38 C.F.R. § 3.306 (2009). For all of the foregoing reasons, the claim for service connection for hypertension must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the current appeal. 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). B. Skin Disorder The Veteran's service treatment records, including the report of his separation examination in July 1992, do not reflect any complaints, clinical findings, treatment, or diagnosis of any skin disorder. Post-service treatment records first mention a skin disorder in March 2001 when it was noted that there was a moderate area of chronic folliculitis on the occipital area of the Veteran's scalp. Subsequent reports note tinea corporis in July 2001 and folliculitis and eczema in March 2006. However, no examiner has indicated or suggested that any current skin disorder had its origins in service. As such, the evidence does not show that a skin disorder manifested during service or within close proximity thereto. In addition, the medical evidence of record does not link any current skin disorder to the Veteran's military service. As noted above, the medical evidence does not show that there was an event, disease, or injury in service to which a current disorder could be related. See 38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease). Nor is there is any medical evidence of record that links any current disorder to a disease or injury in service. In fact, the Veteran has not pointed to any evidence or advanced any specific contention linking any current skin disorder with service. Therefore, the Board finds that a skin disorder did not manifest during service and has not been shown to be causally or etiologically to an event, disease, or injury in service. For all the foregoing reasons, the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the current appeal. 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). C. Muscle and Joint Pain The Veteran's service treatment records do not reflect any complaints, treatment, or diagnosis concerning muscle or joint pain. In fact, the Veteran indicated on his claim form that he was first treated for chronic muscle and joint pain by the Indian Health Service beginning in November 2006. Treatment records from that provider do note his complaint of "body aches" in March 2001, but no clinical findings or diagnosis were listed at that time. Beginning in April 2001, the reports reflect various orthopedic complaints, which were attributed to probable left lateral meniscus damage, left knee chondromalacia, a sprained left ankle, a right elbow injury after a fall, a right medial collateral ligament tear, bilateral plantar fasciitis and calcaneal bursitis, pes equinus, and pes cavus. The treating physicians did not note a date of onset for any diagnosed disability, nor did they attribute any disability to service. A March 2006 clinic record notes the Veteran's report of having had back pain in his right flank intermittently for the previous 18 years, but no clinical findings or diagnosis were listed. The record shows that no examiner has attributed any of the diagnosed orthopedic disabilities to an injury or disease in service. The RO wrote the Veteran in January 2007 requesting that he clarify which muscles and joints he was claiming were involved. No response has been received, and he did not provide any clarification in his notice of disagreement or substantive appeal. As noted above, the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In light of the Veteran's failure to cooperate with VA's attempts to assist him in obtaining evidence to support this claim, the Board finds that VA's duty to assist has been met and that no further assistance is required. As noted above, the medical evidence does not show that there was an event, disease, or injury in service to which a current disorder could be related, as his service treatment records are negative for any pertinent complaints. See 38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease). Significantly, the Veteran himself has not contended that the disability began in service, so continuity of symptomatology is not an issue. See 38 C.F.R. § 3.303(b). The Board also observes that the Veteran has been diagnosed with several orthopedic disabilities since his separation from service; however, no examiner has related any of those disabilities to service. Accordingly, the criteria are not met for service connection for any of those disabilities on the basis of direct service incurrence. The Board also observes that the law allows for compensation to be paid to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest either during 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 December 31, 2011. A qualifying disability is defined as an undiagnosed illness that includes a medically unexplained disorder manifested by muscle pain or joint pain. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. The record shows that the Veteran had active service in the Southwest Asia theater of operations during the Persian Gulf War. However, none of the medical records in service or subsequent to service indicate that the Veteran has been shown to have any chronic disability manifest by muscle or joint pain. No examiner has recorded any objective findings of such a disability. Several orthopedic disorders have been diagnosed since the Veteran's separation from service. However, those disorders are excluded from consideration under the applicable law and regulation because they have been attributed to a clinical diagnosis, and as such, there is no medically unexplained chronic multisymptom illness. Therefore, the Board concludes that the criteria are not met for compensation for muscle pain and joint pain under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. For the foregoing reasons, the claim for muscle pain and joint pain must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the- doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the current appeal. 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). II. Higher Initial Evaluation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2009). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). In a September 2007 rating decision, the RO granted service connection for a left ring finger scar and assigned a noncompensable evaluation effective from November 24, 2006, pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7805. The Board acknowledges that 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 were recently amended, effective as of October 23, 2008. However, as the Veteran's claim was received in 2004 and this amendment applies to applications for benefits received by VA on or after October 23, 2008, these changes do not apply to the claim currently under consideration. Although the Veteran has been scheduled for a VA examination in connection with his claim for a higher initial evaluation on at least three occasions, he has either cancelled or failed to report for all of those examinations. According to 38 C.F.R. § 3.655, in an original compensation claim, when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, the claim shall be rated based on the evidence of record. The available service treatment records show that there was an one-inch scar on the fourth digit of the left hand at the time of the Veteran's separation examination in July 1992. The Veteran expressed no pertinent complaints at that time and indicated that he was in excellent health. Private post-service treatment records show that the Veteran sustained a Boxer fracture of the left hand in July 1998. A record in August 1998 indicates that the fracture was still displaced, but subsequent treatment records dated through December 2006 do not mention the Boxer fracture, the left ring finger scar, or any left hand complaints whatsoever. It has been contended that the Veteran's whole hand should be considered rather than just the scar because he has reported that the fingers of his left hand become stiff, his bones hurt, and his range of motion is affected in cold weather. However, the Board notes that the Veteran has only been granted service connection for a left ring finger scar. As such, that is the only disability that can be considered in the evaluation. Moreover, the Boxer fracture was sustained as a result of an acute injury several years after the Veteran's first period of service, but prior to his second period of service. The medical evidence does not show that he has any residuals of the Boxer fracture that are associated with the service-connected left ring finger scar. In addition, as previously noted, VA's attempts to obtain a current medical assessment of the service-connected disability, including its manifestations, have been frustrated by the Veteran's repeated cancellations and failure to report for scheduled examinations. While the Veteran is certainly competent to report his observable symptoms, he is not competent to render a medical determination as to which of those symptoms may be due to the service-connected disability and which are due to non-service-connected residuals of the 1998 Boxer fracture or to other disability. Nor is he competent to comment on pertinent clinical findings. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992); Jones v. Brown, 7 Vet. App. 134 (1994). Finally, as noted above, the medical records are negative for any complaints or clinical findings regarding the Veteran's service-connected left ring finger scar since his separation from service in 1992, at which time it consisted of a one- inch scar that was apparently asymptomatic. In the absence of any medical evidence or specific complaints regarding the scar during the subsequent 18 years, the Board finds that there is no competent evidence that the current manifestations of the scar disability are different from what they were in 1992. Turning to the application of the manifestations of the disability to the rating criteria, the Board observes that Diagnostic Code 7800 provides the criteria for evaluation of disfigurement of the head, face, or neck. In this case, the Veteran's service-connected scar is on his left ring finger. As such, Diagnostic Code 7800 is inapplicable. Diagnostic Code 7801 pertains to scars that are not located on the head, face, or neck, that are deep or that cause limited motion. However, the available evidence of record does not reflect that the Veteran's scar is deep or causes limited motion. Therefore, a higher initial evaluation is not warranted under that diagnostic code Under Diagnostic Code 7802, a 10 percent disability evaluation is assigned for scars covering an area or areas of 144 square inches (929 square centimeters) or greater that are not located on the head, face, or neck, that are superficial and that do not cause limited motion. As previously noted, the available medical evidence shows that the Veteran's scar was noted as being one inch in length. Consequently, the Veteran has not been shown to have met the criteria for a higher initial evaluation under Diagnostic Code 7802. Diagnostic Code 7803 provides that a 10 percent disability evaluation is warranted for superficial, unstable scars. According to Note (1) of that diagnostic code, an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Nevertheless, in this case, there is no indication that the Veteran's scar is unstable, and as such, the criteria for a 10 percent disability evaluation have not been met. With respect to Diagnostic Code 7804, the Board notes that a 10 percent evaluation is assigned for a superficial scar that is painful upon examination. The available medical evidence does not show that the service-connected scar is painful. In fact, the Veteran has not specifically reported that his scar is painful. Therefore, the Board finds that a 10 percent evaluation is not warranted under Code 7804. Finally, Diagnostic Code 7805 provides that other scars should be evaluated on limitation on of motion of the affected part. However, as previously discussed, there is no medical evidence of record showing that the Veteran has limitation of function to his service-connected left ring finger as opposed to a nonservice- connected hand disorder. Moreover, even if there is limitation of function due to the scar, there is no medical evidence establishing the extent or degree of such limitation. It again bears emphasis that the Veteran's has failed to cooperate with VA's attempts to obtain a current medical assessment of the severity and manifestations of his service-connected disability. Therefore, based on the available evidence of record, the Board finds that a compensable evaluation is not warranted for a left ring finger scar. The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the Veteran's scar of the left ring finger has not been shown to cause marked interference with employment beyond that contemplated by the Schedule for Rating Disabilities, as discussed above; has not necessitated frequent periods of hospitalization; and, has not otherwise rendered impractical the application of the regular schedular standards utilized to evaluate the severity of the disability. Thus, the Board finds that the requirements for referral of the case for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). The Board concludes that the preponderance of the evidence is against the claim for a compensable rating, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Assignment of staged ratings is not for application. Fenderson, supra. ORDER Service connection for hypertension is denied. Service connection for a skin disorder is denied. Service connection for muscle/joint pain is denied. An initial compensable evaluation for a left ring finger scar is denied. REMAND Depression (claimed as neuropsychiatric condition and sleep disorder) On his claim form, the Veteran indicated that he had received neurological and neuropsychological treatment from the Yankton Department of Human Services in Rapid City, South Dakota, beginning in March 1993. VA's duty to assists requires that reasonable efforts be made to obtain relevant non-VA treatment records that are identified by the Veteran. See 38 C.F.R. § 3.159(c)(1) (2009). The record does not reflect that any treatment records have been requested from that facility. Therefore, a remand is required to permit the RO to request the identified treatment records. Accordingly, the case is REMANDED for the following actions: 1. The RO should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for a psychiatric or sleep disorder. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file. A specific request should be made for medical records from the Yankton Department of Human Services in Rapid City, South Dakota, since March 1993 2. Following the completion of the foregoing, the RO should conduct any additional development that may be indicated by the evidence. Then, after completing all indicated development, the Veteran's claim for service connection should be readjudicated. If the claim is not granted to the Veteran's satisfaction, the RO should provide him with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response before returning the case to the Board. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and argument on the matter or 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. 2009). ____________________________________________ JESSICA J. WILLS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs