Citation Nr: 1035892 Decision Date: 09/23/10 Archive Date: 09/30/10 DOCKET NO. 06-22 939 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right ankle disorder. 2. Entitlement to service connection for a right foot disorder. 3. Entitlement to service connection for bilateral pes planus. 4. Entitlement to service connection for allergic dermatitis, both hands. 5. Entitlement to service connection for sinusitis. 6. Entitlement to a disability rating in excess of 30 percent for the residuals of gall bladder removal. 7. Entitlement to a compensable disability rating for migraine headaches. 8. Entitlement to service connection for chronic fatigue syndrome. 9. Entitlement to service connection for chronic upper respiratory infections/bronchitis. 10. Entitlement to service connection for a right knee disorder. 11. Entitlement to service connection for a right elbow disorder. 12. Entitlement to service connection for a left elbow disorder. 13. Entitlement to service connection for a right wrist disorder. 14. Entitlement to service connection for a left wrist disorder. 15. Entitlement to service connection for right Achilles tendonitis. 16. Entitlement to service connection for high grade carcinoma in sutu (CIS II). 17. Entitlement to service connection for costochondritis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. R. Mullins, Associate Counsel (CONTINUED ON NEXT PAGE) INTRODUCTION The Veteran had active service from January 1988 to February 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs Regional Office (RO) in St. Petersburg, Florida. While the Veteran's appeal was pending before the Board, the Veteran was granted service connection for a thoracolumbar spine disorder, a cervical spine disorder, a left knee disorder, and a left ankle disorder with associated left foot weakness. Since these grants constituted a full grant of the benefits sought on appeal, these claims are no longer in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The issues of entitlement to service connection for allergic dermatitis of both hands and service connection for sinusitis, as well as her claim of entitlement to an increased disability rating for residuals of gall bladder removal surgery, 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. The Veteran has not been diagnosed with a right ankle disorder. 2. The Veteran has not been diagnosed with a right foot disorder. 3. The Veteran has not been diagnosed with bilateral pes planus. 4. VA received notification from the Veteran in November 2008 indicating that she wished to withdraw her appeal of entitlement to a compensable disability rating for migraine headaches, and the Board received such request prior to the promulgation of a decision. 5. VA received notification from the Veteran in November 2008 indicating that she wished to withdraw her appeal of entitlement to service connection for chronic fatigue syndrome, and the Board received such request prior to the promulgation of a decision. 6. VA received notification from the Veteran in November 2008 indicating that she wished to withdraw her appeal of entitlement to service connection for chronic upper respiratory infections/bronchitis, and the Board received such request prior to the promulgation of a decision. 7. VA received notification from the Veteran in November 2008 indicating that she wished to withdraw her appeal of entitlement to service connection for a right knee disorder, and the Board received such request prior to the promulgation of a decision. 8. VA received notification from the Veteran in November 2008 indicating that she wished to withdraw her appeal of entitlement to service connection for a right elbow disorder, and the Board received such request prior to the promulgation of a decision. 9. VA received notification from the Veteran in November 2008 indicating that she wished to withdraw her appeal of entitlement to service connection for a left elbow disorder, and the Board received such request prior to the promulgation of a decision. 10. VA received notification from the Veteran in November 2008 indicating that she wished to withdraw her appeal of entitlement to service connection for a right wrist disorder, and the Board received such request prior to the promulgation of a decision. 11. VA received notification from the Veteran in November 2008 indicating that she wished to withdraw her appeal of entitlement to service connection for a left wrist disorder, and the Board received such request prior to the promulgation of a decision. 12. VA received notification from the Veteran in November 2008 indicating that she wished to withdraw her appeal of entitlement to service connection for right Achilles tendonitis, and the Board received such request prior to the promulgation of a decision. 13. VA received notification from the Veteran in November 2008 indicating that she wished to withdraw her appeal of entitlement to service connection for high grade CIS II, and the Board received such request prior to the promulgation of a decision. 14. VA received notification from the Veteran in November 2008 indicating that she wished to withdraw her appeal of entitlement to service connection for costochondritis, and the Board received such request prior to the promulgation of a decision. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a right ankle disorder have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2009). 2. The criteria for establishing entitlement to service connection for a right foot disorder have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2009). 3. The criteria for establishing entitlement to service connection for bilateral pes planus have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2009). 4. The criteria for withdrawal by the Veteran of a Substantive Appeal pertinent to the issue of entitlement to a compensable disability rating for migraine headaches have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2009); 38 C.F.R. §§ 20.202, 20.204 (2009). 5. The criteria for withdrawal by the Veteran of a Substantive Appeal pertinent to the issue of entitlement to service connection for chronic fatigue syndrome have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2009); 38 C.F.R. §§ 20.202, 20.204 (2009). 6. The criteria for withdrawal by the Veteran of a Substantive Appeal pertinent to the issue of entitlement to service connection for chronic upper respiratory infections/bronchitis have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2009); 38 C.F.R. §§ 20.202, 20.204 (2009). 7. The criteria for withdrawal by the Veteran of a Substantive Appeal pertinent to the issue of entitlement to service connection for a right knee disorder have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2009); 38 C.F.R. §§ 20.202, 20.204 (2009). 8. The criteria for withdrawal by the Veteran of a Substantive Appeal pertinent to the issue of entitlement to service connection for a right elbow disorder have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2009); 38 C.F.R. §§ 20.202, 20.204 (2009). 9. The criteria for withdrawal by the Veteran of a Substantive Appeal pertinent to the issue of entitlement to service connection for a left elbow disorder have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2009); 38 C.F.R. §§ 20.202, 20.204 (2009). 10. The criteria for withdrawal by the Veteran of a Substantive Appeal pertinent to the issue of entitlement to service connection for a right wrist disorder have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2009); 38 C.F.R. §§ 20.202, 20.204 (2009). 11. The criteria for withdrawal by the Veteran of a Substantive Appeal pertinent to the issue of entitlement to service connection for a left wrist disability have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2009); 38 C.F.R. §§ 20.202, 20.204 (2009). 12. The criteria for withdrawal by the Veteran of a Substantive Appeal pertinent to the issue of entitlement to service connection for right Achilles tendonitis have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2009); 38 C.F.R. §§ 20.202, 20.204 (2009). 13. The criteria for withdrawal by the Veteran of a Substantive Appeal pertinent to the issue of entitlement to service connection for high grade CIS II have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2009); 38 C.F.R. §§ 20.202, 20.204 (2009). 14. The criteria for withdrawal by the Veteran of a Substantive Appeal pertinent to the issue of entitlement to service connection for costochondritis have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2009); 38 C.F.R. §§ 20.202, 20.204 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide 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 RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the 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 a Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Previously, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the failure to provide pre- adjudicative notice of any of the necessary duty to notify elements was presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). VA was required to show that that the error did not affect the essential fairness of the adjudication, and that to make such a showing the VA had to demonstrate that the defect was cured by actual knowledge on the claimant's part or that a benefit could not have been awarded as a matter of law. Id. However, the United States Supreme Court (Supreme Court) recently held this framework was inconsistent with the requirement that the CAVC take "due account of the rule of prejudicial error" under 38 U.S.C.A. § 7261(b)(2). Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In reversing the Federal Circuit's decision, the Supreme Court held that the burden is on the claimant to show that prejudice resulted from the error, rather than on VA to rebut a presumed prejudice. Id. Regarding the Veteran's claims of entitlement to service connection , a letter sent to the Veteran in May 2004 addressed all notice elements listed under 3.159(b)(1) and was sent prior to the initial RO decision in this matter. The letter informed her of what evidence was required to substantiate the claims and of her and VA's respective duties for obtaining evidence. Even though the Veteran was not provided with the Dingess requirements (specifically, how disability ratings and effective dates are assigned) until after the initial adjudication of the claims in the May 2006 statement of the case, the claims were subsequently readjudicated, no prejudice has been alleged, and none is apparent from the record. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). In any event, because the claim is being denied, any question as to the appropriate disability rating or effective date is moot, and there can be no failure-to-notify prejudice to the Veteran. See Dingess/Hartman, 19 Vet. App. at 484. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of her case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting her 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). VA obtained the Veteran's service medical records. Also, the Veteran received a VA medical examination in May 2008, and VA has obtained these records as well as the records of the Veteran's outpatient treatment with VA. Also, copies of private medical opinions have been incorporated into the Veteran's claims file. Significantly, neither the Veteran nor her representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not yet been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist her 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). Relevant Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 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); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Where a Veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as arthritis, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309 (2009). Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Also, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. See 38 C.F.R. § 3.310(b); Libertine v. Brown, 9 Vet. App. 521, 522 (1996); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). An appellant's own conclusion, stated in support of his claim, that his present disability is secondary to his service-connected disability is not competent evidence as to the issue of medical causation, unless the causation link is readily observable by a lay individual. See 38 C.F.R. § 3.159 (2009); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); contrast Grivois v. Brown, 6 Vet. App. 136 (1994). A layperson is generally competent to provide testimony concerning factual matters of which he has first hand knowledge (i.e., experiencing or observing pain in his feet and shortness of breath. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay- observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay testimony must be evaluated as to whether it is material evidence in regard to establishing service connection generally, which can involve a demonstration of continuity of symptomatology. See Barr, 21 Vet. App. at 303 (stating that an alternative method of establishing the second or third Caluza element is through a demonstration of continuity of symptomatology). This evaluation involves making findings of fact. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). ("[T]he Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc."); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (elucidating that VA must consider lay evidence, but may give it whatever weight it concludes the evidence is entitled to); Jandreau v. Nicholson, 492 F.3d at 1376-77 (stating "[w]hether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board"). Right Ankle Disorder The Veteran contends that she is entitled to service connection for a right ankle disorder. However, the preponderance of the evidence of record demonstrates that the Veteran does not have a currently diagnosed right ankle disorder. As such, service connection is not warranted. The Veteran's service treatment records do not demonstrate that she suffered from a right ankle injury during her military service. A December 1994 record notes that the Veteran injured her left ankle, but there is no mention of an injury to the right ankle at this time. The record also contains a September 1996 record that demonstrates that the Veteran was involved in a motor vehicle accident. However, there is no mention of right ankle pain or treatment of the right ankle demonstrated by the record as a result of this accident. A July 1999 treatment record also notes that the Veteran had left ankle trace edema that was approximately equal to the right ankle. However, no diagnosis was assigned specific to the right ankle at this time. Also, according to the Veteran's January 2000 separation examination, her lower extremities were abnormal at the time of separation due to a mild reproduction of chronic left ankle pain. There was no mention of a right ankle condition. As such, the Veteran's service treatment records demonstrate that the Veteran did not suffer a right ankle injury or chronic right ankle disorder during military service. The Veteran's post-service treatment records also demonstrate that the Veteran does not have a presently diagnosed chronic right ankle disorder. According to an April 2006 VA outpatient treatment record, the Veteran reported suffering from bilateral ankle pain that was greater in her left ankle than in her right ankle. The Veteran was also afforded a VA examination of the ankles in May 2008. Examination of the ankle revealed a range of motion of plantar flexion to 40 degrees and dorsiflexion to 20 degrees. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. The examiner concluded that the Veteran had a normal right ankle. However, the examiner noted that the right ankle did face some increased stress and occasional pain secondary to the Veteran's left ankle condition. The record also contains a number of letters from private physicians in support of the Veteran's claim. According to an August 2003 letter from a private physician with the initials A.M.K., notes pertaining to bilateral foot and ankle problems demonstrated a "possibility" of service-related disabilities. However, Dr. K noted that she had never actually treated the Veteran for foot or ankle problems. The record also contains a March 2004 letter prepared by a private physician with the initials J.E.F., indicating that it was at least as likely as not that the Veteran's bilateral ankle condition was secondary to her military service. Dr. F noted that the Veteran was involved in two motor vehicle accidents while on active duty. Finally, the record contains a February 2004 letter from S.L.L., MD. According to Dr. L, "[t]he conditions stated in letter dated September 17, 2003 appear to have all been present during [the Veteran's] service." However, Dr. L did not submit a letter dated September 17, 2003, and the record does not contain any letter with this date. As such, the conditions being referred to by Dr. L are not known. Dr. L.'s February 2004 letter is of no probative value. Based on the above evidence, the Board concludes that the Veteran is not entitled to service connection for a right ankle disorder. There is no evidence of a right ankle injury during active duty. Furthermore, examination in May 2008 revealed a normal right ankle. While the examiner did note that the Veteran experienced increased stress on the right ankle and occasional pain, there was no evidence suggesting that this stress had resulted in a current disability. In particular, the medical evidence establishes that the stress on the right ankle due to left ankle disability was occasional. Furthermore, pain alone is not a disability for VA compensation purposes. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). There must be a current diagnosis of a disorder for service connection to be granted. Hickson v. West, 12 Vet. App. 247, 252 (1999). Without a medical diagnosis of a right ankle disorder, the Board must deny the Veteran's claim. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). In making this determination, the Board has taken into consideration the opinions offered by a number of different private physicians. However, the opinion of Dr. L is of no probative value, as it references a list of disabilities that is not in the claims file. Likewise, the August 2003 letter from Dr. K is of no probative value. Dr. K opined that it was "possible" that the Veteran had a bilateral ankle condition related to service. However, Dr. K admitted to never treating the Veteran's right ankle. Without evidence of a current diagnosis, this opinion is not reliable. A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Finally, the Board does not find the March 2004 opinion of Dr. F to be probative either. Dr. F indicated that, after reviewing the Veteran's service medical records, it was at least as likely as not that the Veteran had a bilateral ankle condition that was related to military service. However, the Veteran's service treatment records do not support Dr. F's statement, in that there is no objective evidence that the Veteran sustained a right ankle injury during military service and her post-service records do not demonstrate that she presently suffers from such a condition. Therefore, Dr. F appears to have been relying on an inaccurate representation of the evidence when offering this opinion. A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). As a final matter, the Board recognizes that the Veteran believes she suffers from a right ankle disorder that is a result of her active military service. However, the Veteran has not offered evidence that she has a right ankle disorder due to military service or a service-connected disability, other than her statements that she has right ankle pain. The Veteran's contention that she is entitled to service connection for right ankle pain is of probative value only to establish subjective complaints of pain. As discussed above, lay statements that pain is present do not establish that a disability for which service connection may be granted is present. Although the Veteran's statements that she has pain are credible, these statements are not probative to establish that a right ankle disorder is present where highly persuasive medical evidence, the report of the 2008 VA examination, discloses normal findings, and is thus unfavorable to the claim. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for a right ankle disorder must be denied. Right Foot Disorder The Veteran contends that she is entitled to service connection for a right foot disorder. However, the preponderance of the evidence of record demonstrates that the Veteran does not suffer from a right foot disorder that manifested during, or as a result of, active military service. As such, service connection is not warranted. The service treatment records are silent regarding any complaints of right foot pain or injury. According to an April 1998 service treatment record, the left foot was X-rayed. However, there was no mention of right foot pain at this time. Finally, the Veteran's January 2000 separation examination notes that her feet were normal at the time of separation. The Veteran also denied having, or ever having had, foot trouble. As such, the preponderance of the evidence of record demonstrates that the Veteran did not suffer from a right foot injury during her military service. The Veteran's post-service treatment records also fail to demonstrate that the Veteran has a current diagnosis of a right foot disorder. The Veteran was afforded a VA examination in May 2008. X-rays were taken of the right foot, revealing no evidence of an acute fracture or dislocation. There were also no degenerative changes recognized and the soft tissue structures were unremarkable. The examiner concluded that this was a negative examination. The record contains no additional credible medical evidence diagnosing the Veteran with a right foot disorder, other than occasional pain. See Sanchez-Benitez v. West, 13 Vet. App. at 285. Therefore, the preponderance of the evidence demonstrates that the Veteran is not entitled to service connection for a right foot disorder. The Veteran's service treatment records do not suggest that the Veteran suffered pain or injury to the right foot during her military service. Furthermore, X-rays taken in May 2008 revealed no abnormalities of the right foot, and the record contains no additional medical evidence diagnosing the Veteran with a current right foot disorder. As already noted, there must be a current diagnosis of a disorder for service connection to be granted. Sanchez-Benitez v. West, 13 Vet. App. at 285. Without a medical diagnosis of a right foot disability, the Board must deny the Veteran's claim. See Degmetich, 104 F.3d at 1333 (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). The Board has again considered the private opinions offered in support of the Veteran's claim. However, as already noted, Dr. K's August 2003 opinion is not reliable, as she admitted to never treating the Veteran for a foot problem. Likewise, the February 2004 opinion of Dr. L is of no probative value, as she references a list of disabilities that is not contained in the claims file. Finally, the Board has found the March 2004 opinion of Dr. F to be unreliable, as he claims a review of the Veteran's service medical records demonstrates that the Veteran is entitled to service connection for a bilateral foot condition. However, there is no reference to a right foot condition in the Veteran's service treatment records, demonstrating that this opinion is unreliable, as it appears to have been based upon an inaccurate factual premise. See Reonal, 5 Vet. App. at 461. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for a right foot disorder must be denied. Bilateral Pes Planus The Veteran contends that she is entitled to service connection for bilateral pes planus. However, for many of the same reasons outlined in the previous section, the Board finds that the preponderance of the evidence demonstrates that the Veteran is not entitled to service connection for this disorder. The Veteran's service treatment records make no reference to pes planus. Also, the Veteran's January 2000 separation examination notes that her feet were normal at the time of separation. The Veteran also denied having, or ever having had, foot trouble. Therefore, there is no evidence of pes planus during active duty. Furthermore, the record contains no medical evidence suggesting that the Veteran has ever been diagnosed with bilateral pes planus. According to the May 2008 VA examination, X-rays of the right and left feet were negative, and there was no diagnosis of pes planus assigned at this time. Without a medical diagnosis of pes planus, the Board must deny the Veteran's claim. See Degmetich, 104 F.3d at 1333 (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Therefore, since there is no evidence of a current diagnosis of pes planus, or any evidence of pes planus in service, the preponderance of the evidence of record is against the Veteran's claim. As such, service connection for bilateral pes planus is not warranted. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for bilateral pes planus must be denied. Withdrawn Issues The Veteran perfected an appeal from an October 2004 rating decision that, in pertinent part, granted service connection for migraine headaches and assigned a noncompensable disability rating, and, denied her claims of entitlement to service connection for chronic fatigue syndrome, chronic upper respiratory infections/bronchitis, a right knee disorder, a right elbow disorder, a left elbow disorder, a right wrist disorder, a left wrist disorder, right Achilles tendonitis, a high grade CIS II, and costochondritis. In November 2008, VA received a letter from the Veteran indicating her intent to withdraw these claims from her appeal. An appeal may be withdrawn at any time before a decision is rendered by the Board. 38 C.F.R. § 20.204(b) (2009). Once the Veteran withdrew these issues, there remained no allegations of error of fact or law for appellate consideration. The Board no longer has jurisdiction to review these issues on appeal and they are dismissed. 38 U.S.C.A. § 7105(d)(5) (West 2002 & Supp. 2009). (CONTINUED ON NEXT PAGE) ORDER The appeal for service connection for a right ankle disorder is denied. The appeal for service connection for a right foot disorder is denied. The appeal for service connection for bilateral pes planus is denied. The appeal for a compensable rating for migraine headaches is dismissed. The appeal for service connection for chronic fatigue syndrome is dismissed. The appeal for service connection for chronic upper respiratory infections/bronchitis is dismissed. The appeal for service connection for a right knee disorder is dismissed. The appeal for service connection for a right elbow disorder is dismissed. The appeal for service connection for a left elbow disorder is dismissed. The appeal for service connection for a right wrist disorder is dismissed. The appeal for service connection for a left wrist disorder is dismissed. The appeal for service connection for right Achilles tendonitis is dismissed. The appeal for service connection for high grade CIS II is dismissed. The appeal for service connection for costochondritis is dismissed. REMAND Allergic Dermatitis and Sinusitis The Veteran contends that she is entitled to service connection for allergic dermatitis of both hands and sinusitis. However, additional evidentiary development is necessary before appellate review may proceed on these matters. The Veteran's service treatment records demonstrate that the Veteran was treated for sinusitis during military service, as well as skin complaints on at least two occasions. According to a February 1997 treatment record, the Veteran had a small rash on her waist. A diagnosis of allergic dermatitis was assigned at this time. The Veteran was also treated in August 1998 with complaints of itching all over. The Veteran was diagnosed with urticaria of unknown etiology. An April 1996 treatment record notes a diagnosis of "possible early sinusitis." A February 1997 treatment record also notes a diagnosis of sinusitis with an upper respiratory infection. The record reflects that the Veteran sought follow-up treatment for her sinusitis in February 1997. In addition, the record contains an August 2003 letter from a private physician with the initials A.M.K. asserting that the Veteran had been treated for sinusitis and flare-ups of dermatitis by her since January 2001. It was Dr. K's opinion that the Veteran's sinusitis and allergic dermatitis of the hands possibly began during her military service. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Since the evidence demonstrates that the Veteran was treated for both dermatitis and sinusitis during active duty, and since Dr. K asserted in August 2003 that the Veteran currently suffered from both of these disorders, the Veteran should be scheduled for a VA examination regarding these claims. While Dr. K only suggested that it was "possible" that these disabilities were related to military service, the Court of Appeals for Veterans Claims has stated that the third McLendon element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. Furthermore, an attempt should be made to obtain treatment records from Dr. K dating back to January 2001. These records would be in close proximity to the Veteran's separation from active duty, and could prove to be vital to her claim. If any records are successfully obtained, they must be incorporated into the Veteran's claims file. Increased Disability Rating for Residuals of Gall Bladder Removal Surgery, including Dumping Syndrome The Veteran contends that she is entitled to a disability rating in excess of 30 percent for her service-connected residuals of a gall bladder removal. Specifically, the Veteran contends that she suffers from dumping syndrome at least 7 to 21 times per week, and that she has had to say home and leave work due to this condition. However, additional evidentiary development is necessary before appellate review may proceed on this matter. The Veteran was originally granted service connection for dumping syndrome as a residual of her gall bladder removal surgery in an October 2004 rating decision. A disability rating of 10 percent was assigned under Diagnostic Code 7318, effective as of June 9, 2003. VA received the Veteran's notice of disagreement regarding this rating in May 2005, and her disability rating was subsequently increased to 30 percent in an October 2008 rating decision. Since this grant did not constitute a full grant of the benefits sought on appeal, this claim is still in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Veteran is currently rated under Diagnostic Code 7318, which applies for the removal of the gall bladder. A 30 percent disability rating is the highest available rating under this Diagnostic Code. 38 C.F.R. § 4.114. However, the Veteran's May 2008 VA examination notes that the Veteran also underwent a pyloroplasty as a result of her gall bladder removal surgery. Diagnostic Code 7308, which is used to rate postgastrectomy syndromes, allows for higher disability ratings of 40 and 60 percent. A 40 percent disability rating is warranted when symptoms are moderate, with less frequent episodes of epigastric disorders with characteristic mild circulatory symptoms after meals but with diarrhea and weight loss. The highest disability rating of 60 percent is warranted for severe symptoms that are associated with nausea, sweating, circulatory disturbances after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia. Id. While the Veteran was afforded a VA examination for this disability in May 2008, the examiner did not address any of the criteria necessary to determine whether the Veteran may be entitled to a higher disability rating under Diagnostic Code 7308. However, the examiner did indicate that the Veteran had "exceedingly over active bowels," suggesting that she may be entitled to a higher disability rating under this code. As such, the Veteran should be afforded a new VA examination that takes into consideration all of her associated symptomatology. In addition, the most recent VA outpatient treatment records in the claims file are from April 2006. Treatment records made since April 2006 should be obtained and incorporated into the claims file. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be asked to submit a copy of the private medical records referenced by Dr. A.M.K. in her August 2003 letter to VA. If the Veteran does not have copies of these records, the AMC should request copies of treatment records from Dr. A.M.K. dating back to January 2001. If any records are obtained, they must be incorporated into the Veteran's claims file. 2. The AMC should obtain copies of the Veteran's VA Medical Center (VAMC) treatment records since April 2006. These records should be incorporated into the Veteran's claims file. 3. After completion of the above, the Veteran should be scheduled for a VA examination before an appropriate specialist(s) to determine whether she suffers from chronic allergic dermatitis of the hands. The Veteran's claims file and a copy of this Remand must be made available to the examiner upon examination. If the Veteran is found to suffer from a chronic skin condition of the hands, the examiner should opine as to whether it is at least as likely as not that this disorder manifested during, or as a result of, the Veteran's active military service. A complete rationale must be offered for any opinion that is provided. Also, the examiner should reference the August 2003 opinion provided by Dr. A.M.K., as well as any treatment records that may have been obtained from her, when offering a final opinion. 4. The Veteran should also be scheduled for a VA examination before an appropriate specialist(s) to determine whether she suffers from chronic sinusitis. The Veteran's claims file and a copy of this Remand must be made available to the examiner upon examination. If the Veteran is found to suffer from chronic sinusitis, the examiner should opine as to whether it is at least as likely as not that this disorder manifested during, or as a result of, the Veteran's active military service. A complete rationale must be offered for any opinion that is provided. Also, the examiner should reference the August 2003 opinion provided by Dr. A.M.K., as well as any treatment records that may have been obtained from her, when offering a final opinion. 5. Finally, the Veteran should be afforded a VA examination before an appropriate specialist(s) to determine the current level of severity of her service-connected gall bladder removal residuals. The Veteran's claims file and a copy of this Remand must be made available to the examiner upon examination. All indicated tests should be performed, and the examiner is asked to describe all symptomatology associated with the Veteran's disability and the severity of her symptomatology. A complete rationale should be provided for any opinion offered. The examiner should also indicate whether the Veteran has symptomatology associated with circulatory symptoms after meals, weight loss, nausea, sweating, hypoglycemic symptoms, malnutrition, or anemia. 6. After completion of the above, the AMC should review the Veteran's claims in light of any new evidence. If the claims are not granted, the Veteran and her representative should be furnished an appropriate supplemental statement of the case (SSOC) and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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). ______________________________________________ Tresa M. Schlecht, Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs