Citation Nr: 1105104 Decision Date: 02/08/11 Archive Date: 02/18/11 DOCKET NO. 07-18 235 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection a low back disorder. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for a left ankle disorder. 4. Entitlement to service connection for a bilateral hip disorder. 5. Entitlement to service connection for a skin disorder of the feet, claimed as tinea pedis (athlete's feet). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Rochelle E. Richardson, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1963 to August 1967. This appeal to the Board of Veterans' Appeals (Board) is from a February 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In August 2010, in support of his claims, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board (Travel Board hearing). At the outset of the hearing, the Veteran indicated he was withdrawing his additional claim for service connection for an ear ache or eardrum injury. So that claim is no longer at issue. 38 C.F.R. § 20.204 (2010). In this decision, the Board is deciding the Veteran's claims for service connection for low back (lumbar spine), left knee, and left ankle disorders. However, the Board is remanding his bilateral hip and skin disorder claims to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. FINDINGS OF FACT 1. The most probative, i.e., competent and credible, medical and other evidence of record does not indicate the Veteran has a low back or left knee disorder that is attributable to his military service - including especially to any injury (trauma) he may have sustained while in service; nor does this evidence indicate these disorders initially manifested within one year of his discharge from service. 2. The most probative medical and other evidence of record also does not indicate he has a left ankle disability (or has since filing this claim). CONCLUSIONS OF LAW 1. The Veteran's low back and left knee disorders were not incurred in or aggravated by his military service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112; 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). 2. The Veteran also does not have a left ankle disability due to disease or injury incurred in or aggravated by his military service. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist Review of the claims file reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100, et seq. See also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). That is, by way of letters dated in May, August, and September 2005, the RO advised the Veteran of the evidence needed to substantiate his claims and explained what evidence VA was obligated to obtain or to assist him in obtaining and what information or evidence he was responsible for providing. 38 U.S.C.A. § 5103(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). For claims, as here, pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA also request that he submit any evidence in his possession that might substantiate his claims. See 73 FR 23353 (Apr. 30, 2008). Consider, as well, that the RO issued all of those letters prior to initially adjudicating his claims in February 2006, so in the preferred sequence. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (Pelegrini II). It equally deserves mentioning that a May 2006 letter also informed him that a downstream disability rating and effective date would be assigned if his underlying claims for service connection were eventually granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). And since providing that additional notice, the RO has readjudicated his claims in the May 2010 supplemental statement of the case (SSOC), effectively rectifying or curing any timing problem from not having provided this additional notice before initially adjudicating his claims. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV) and Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (both indicating that, as a matter of law, the provision of adequate VCAA notice prior to a readjudication, such as in a statement of the case (SOC) or supplemental SOC (SSOC), "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication.) Furthermore, in Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States Supreme Court made clear that a reviewing court, in considering the rule of prejudicial error, is precluded from applying a mandatory presumption of prejudice rather than assessing whether, based on the facts of each case, the error was outcome determinative. In Sanders, the Supreme Court rejected the lower Federal Circuit's framework (see Sanders v. Nicholson, 487 F. 3d 881, 889 (Fed. Cir. 2007)) that all VA notice errors are presumptively prejudicial, in part, because it was "complex, rigid, and mandatory." Id., at 1704. The Supreme Court rejected the Federal Circuit's analysis because it imposed an unreasonable evidentiary burden on VA to rebut the presumption and because it required VA to demonstrate why the error was harmless, rather than requiring the appellant - as the pleading party, to show the error was harmful. Id., at 1705-06. The Supreme Court stated that it had "warned against courts' determining whether an error is harmless through the use of mandatory presumptions and rigid rules rather than case-specific application of judgment, based upon examination of the record." Id., at 1704-05. Thus, it is clear from the Supreme Court's analysis that, while the Veterans Court may conclude generally that a specific type of error is more likely to prejudice an appellant, the error must nonetheless be examined in the context of the facts of the particular case. Id. The Veterans Court held in Vazquez-Flores v. Peake, 22 Vet. App. 37, 48 (2008), since overturned on other grounds in Vazquez- Flores v. Shinseki, 2009 WL 2835434 (Fed.Cir.), that prejudicial deficiencies in the timing or content of a VCAA notice can be cured by showing the essential fairness of the adjudication will not be affected because: (1) the defect was cured by actual knowledge on the part of the claimant ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F. 3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre- adjudicatory section 5103(a) notice error non- prejudicial." Vazquez-Flores, 22 Vet. App. at 46. See also Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had erred by relying on various post-decisional documents for concluding adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Veterans Court nonetheless determined the evidence established the Veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore found the error harmless). And as for the duty to assist, the RO obtained the Veteran's service treatment records (STRs), service personnel records, private treatment records, and VA evaluation and treatment records - including the reports of his VA Compensation and Pension Examinations (C&P Exams) addressing the nature and etiology of his claimed conditions, the dispositive issues concerning these claims. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4). Thus, as there is no other indication or allegation that relevant evidence remains outstanding, at least concerning these particular claims, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A. II. Whether Service Connection is Warranted Service connection is granted if the evidence shows a current disability resulted from an injury or a disease that was incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Stated somewhat differently, direct service connection generally requires: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) medical evidence of a nexus or link between the claimed in- service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Certain conditions like arthritis are considered chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (generally of at least 10- percent disabling) within one year after service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). So service connection is established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Direct service connection generally requires evidence of a current disability with a relationship or connection to an injury or a disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). A disorder may be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated subsequent to service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). For the showing of chronic disease in service, there is a required 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." 38 C.F.R. § 3.303(b). Evidence relating the current disorder to service must be medical unless it concerns a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 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, (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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Disorders diagnosed after discharge still may be service connected if all the evidence, including that pertinent to service, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Low Back and Left Knee Disorder Claims As explained, the first and indeed perhaps most fundamental requirement for any service-connection claim is there must be competent evidence of the existence of the currently claimed disability. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (service connection presupposes a current diagnosis of the condition claimed, to at least confirm the Veteran has it; without this minimum level of proof, there can be no valid claim). Here, the report of the Veteran's February 2010 VA C&P Exam confirms he has degenerative changes of his lumbosacral spine and degenerative joint disease of his left knee (i.e., low back and left knee arthritis). Arthritis, incidentally, must be objectively confirmed by X-ray findings. 38 C.F.R. § 4.71a, Diagnostic Code 5003. So there is no disputing he has these claimed conditions. Therefore, the determinative issue is whether either disability is attributable to his military service, and especially to an injury he says that he sustained during service when he slipped and fell while stationed aboard a ship. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("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 a disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). The Veteran is competent, even as a layman, to proclaim having sustained the injuries in question during service in the manner alleged. Washington v. Nicholson, 19 Vet. App. 363 (2005) (A Veteran is competent to report what occurred in service because testimony regarding first-hand knowledge of a factual matter is competent). He also is competent to say he experienced certain symptoms like pain, etc., in the aftermath of those injuries since this, too, is capable of even his lay testimony. See 38 C.F.R. § 3.159(a)(1) versus (a)(2). Indeed, in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Federal Circuit Court recognized lay evidence as potentially competent to support presence of disability, including during service, even where not corroborated by contemporaneous medical evidence such as treatment records (STRs, etc.). But to ultimately have probative value, his lay testimony also has to be credible. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (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")). And this determination is based, not only on his lay testimony, but also on the other evidence of record bearing on this determination. The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). With respect to his low back disorder claim, the Veteran's STRs affirm he received treatment during service for complaints referable to his back. More specifically, these records show that, in December 1963, he received treatment for complaints of back pain in his lumbar region after slipping (apparently the injury in question), and again in January 1964, so the following month, his back pain had persisted. His STRs also show that, in January 1966, he again received treatment for back pain that was attributed to a strain. So there is confirmation of injury to his low back in service; his lay testimony concerning the circumstances of that injury therefore is credible, aside from its competency. The question remains, however, whether he has consequent disability to show chronicity (i.e., permanency) of this injury in service. That is to say, it cannot just have been acute and transitory and eventually resolved. The Veteran's military service ended in August 1967, so many years ago. And concerning this purported etiological relationship between his current low back disability and the documented injury and symptoms he experienced in service, the report of his February 2010 VA C&P Exam indicates it is less likely than not the current degenerative changes of his lumbar spine are in any way associated with his military service. So, clearly, this examiner concluded unfavorably, and he was specifically tasked with making this important determination. See Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the Veteran's position.) This report indicates that, in coming to this unfavorable conclusion, this examiner reviewed the Veteran's X-rays and noticed they look really good for a 67 year old obese male. He reportedly has only relatively minimal degenerative changes for his age and body habitus. In further explanation, this examiner observed the Veteran's STRs show complaints of low back pain from December 30, 1963 to January 6, 1964, but that he continued on pain medication and muscle relaxers and the symptoms resolved. He had a one-time event of muscle spasms on January 4, 1966, after picking up a pan in the galley and was diagnosed with back strain. But his post-service private records show complaints of back pain following an intercurrent motor vehicle accident in September 2002, and there were no such complaints or treatment referable to his low back during the 36 or so intervening years from 1966 to 2002. So this examiner is citing this substantial lapse of time between the injury and symptoms in service and their recurrence, and only after that additional injury, as significant reason for concluding the current low back disability is unrelated to service. See Maxon v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service resulting in any chronic or persistent disability). This VA examiner's opinion is well-reasoned and based on an objective clinical evaluation of the Veteran and his specific circumstances. Hence, the opinion has the proper factual foundation and predicate and, thus, is entitled to a lot of probative weight. Elkins v. Brown, 5 Vet. App. 474, 478 (1993); Swann v. Brown, 5 Vet. App. 177, 180 (1993). Furthermore, there is no equally probative medical opinion of record refuting this VA examiner's unfavorable conclusion. And although the Board is sympathetic to the Veteran's claim, in the absence of competent medical evidence linking his current low back disability to his military service, the preponderance of the evidence is against his claim. So the Board must find that the most probative, i.e., competent and credible, evidence of record indicates he does not have a low back disability that is attributable to his military service, including especially to the trauma and symptoms he experienced in service. Moreover, there is not the required X-ray confirmation of arthritis within one year of his discharge from service, meaning by August 1968, certainly not to the required degree of at least 10-percent disabling, to otherwise warrant presuming any current arthritis was incurred in service. 38 C.F.R. § 4.71, Diagnostic Codes 5003 and 5242. See also 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). With respect to his left knee disorder claim, the Veteran's STRs show he received in-service treatment for complaints of left knee symptoms in April 1966 relating to falling down some stairs. So there again is objective evidence supporting his assertions regarding having fallen and sustained injury while in service and having experienced relevant symptoms like pain in the aftermath. His lay testimony concerning this, therefore, is credible, aside from its competency. But, again, there also has to be indication of consequent disability to show chronicity (i.e., permanency) of that injury in service. That is to say, it cannot just have been acute and transitory and eventually resolved. The February 2010 VA C&P Examiner additionally was asked to comment on this alternative possibility. He determined it is less likely that not that the current degenerative joint disease of the left knee is in any way associated with the Veteran's military service. So his opinion concerning this disorder was unfavorable as well. This examiner's report indicates that, in coming to this additional unfavorable conclusion, he reviewed the Veteran's X- rays and observed that both knees are about equal with respect to degenerative changes (the logical inference being there are no signs of appreciably greater or more significant degenerative changes in the knee that was injured during service in comparison to the one that was not). This examiner pointed out that there was joint space narrowing, even though the Veteran has no history of right knee injury. And regarding his left knee, the one at issue, he had a one-time complaint in service regarding pain in this knee and he was diagnosed with an abrasion, which healed and there were no further left knee complaints while he was in service. This examiner goes on to note there is no other injury in the STRs regarding the left knee - including on the Veteran's military discharge exam report. Further, the earliest X-rays regarding his knees are those performed in connection with his C&P Exam - which, again, show his left and right knees are about equal for degenerative changes, even though he has not suffered any injury to his right knee as he has to his left knee. Because this examiner discussed the rationale for his unfavorable opinion, aside from examining the Veteran personally and considering his relevant medical and other history, this opinion has a lot of probative weight. See Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (wherein the Court discusses at length the method for determining the probative value of a medical opinion, noting that the value of the opinion is not simply derived from whether the claims file was reviewed, rather, also on the supporting analysis and not just unsubstantiated data and conclusions). Furthermore, here, there is no equally probative medical opinion of record refuting this VA examiner's unfavorable conclusion. Accordingly, the Board must find the probative medical evidence of record indicates the Veteran does not have a left knee disorder that is attributable to his military service - including to falls sustained and symptoms experienced in service. For these reasons and bases, there is no reasonable doubt to resolve in his favor with respect to either claim, so his claims for service connection for low back and left knee disorders must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Left Ankle Disability Claim As already alluded to, in Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. See also Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection may not be granted unless a current disability exists]. A "current disability" means a disability shown by competent medical evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). Here, the Veteran claims to have a current left ankle disability manifested by pain. See his August 2010 hearing testimony. But generally speaking, mere pain, alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez- Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). His post-service treatment records do not indicate he has received a diagnosis of any left ankle disability to account for his subjective complaints of pain. The report of his October 2005 left ankle X-ray indicates there was no fracture or dislocation; the ankle joint mortise was well-maintained; and no soft tissue swelling was seen. It provides a negative impression as to any left ankle abnormality. Furthermore, the report of his October 2005 VA contractor-provided exam indicates there was no left ankle diagnosis because there was no pathology to render a diagnosis. Hence, the Veteran has failed to satisfy his threshold preliminary evidentiary burden of establishing he has current left ankle disability or has at any point since filing this claim. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997) (holding that VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability). See, too, McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that he may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). Absent proof he has this required current disability, the Board need not address the downstream question of whether this, for all intents and purposes, nonexistent disability is related to his military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993). For these reasons and bases, the preponderance of the evidence is against this claim, in turn meaning there is no reasonable doubt to resolve in the Veteran's favor, and that this claim resultantly must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER The claims for service connection for low back, left knee, and left ankle disorders are denied. REMAND Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service-connection) claims, VA must provide a medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See also 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4). When determining whether a VA examination is required under 38 U.S.C.A. § 5103A(d)(2), the law requires competent evidence of a disability or symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence indicates an association between the disability and service or another service-connected disability. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Consequently, for the reasons and bases discussed below, the Board must remand the Veteran's remaining claims for service connection for a bilateral hip disorder and a skin disorder of his feet (tinea pedis). Bilateral Hip Disorder The report of the Veteran's February 2010 VA C&P Exam indicates he has significant arthritis of both hips, status post bilateral hip replacement. So there is competent medical evidence he has this claimed condition. Therefore, the determinative issue is whether it is attributable to his military service - and especially to the documented injury in service he cites as the source of this present-day disability. See again Watson v. Brown, 4 Vet. App. 309, 314 (1993). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). Although there is documentation of injury in service, there is no mention of trauma to, treatment for, or complaints concerning his hips specifically. But this, while probative evidence against this claim, is not altogether dispositive of it. In Dalton v. Nicholson, 21 Vet. App. 23 (2007), the Court found that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and, instead, relied exclusively on the absence of evidence in the Veteran's service treatment records (STRs) to provide a negative opinion. So additional medical comment is needed concerning this claim. Skin Disorder of the Feet The Veteran claims he has a skin condition affecting his feet - namely, tinea pedis (athlete's feet), which comes and goes since he treats it with an antifungal cream. But he says that he first experienced the effects of this condition while in service. See his August 2010 hearing testimony. The Veteran's STRs confirm that, while in service, he received treatment in September 1963 for bilateral athlete's foot. However, in October 2005, he had a VA contractor-provided examination that included examination of the skin on his feet to determine whether he still has this condition. And the report of that exam indicates that, at least at the time of that evaluation, he did not have any skin-related symptoms. So there was not the required confirmation of this condition's current presence. Skin disorders, however, by their very nature wax and wane, so sometimes are visibly evident whereas at other times are not. It therefore has been held that an examination of a skin disorder, if possible, should be during an active (not inactive) stage of the disease because of its cyclical manifestations. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (requiring adequate tinea pedis examination during active stage of the disorder). The Veteran therefore needs to be re-examined concerning this claimed condition and, preferably, during a time when his associated symptoms are visibly noticeable. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service- connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). And see Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (indicating an opinion is considered adequate when it is based on consideration of an appellant's medical history and examinations and describes the disability in sufficient detail so the Board's evaluation of the claimed disability is a fully informed one). Accordingly, these remaining claims are REMANDED for the following additional development and consideration: 1. Schedule the Veteran for appropriate VA examinations to reassess the nature and etiology of his claimed bilateral hip disability and skin disability of his feet. With respect to the bilateral hip disability, the examiner should provide an opinion as to the likelihood (very likely, as likely as not, or unlikely) that any diagnosed disability is attributable to the Veteran's military service - especially to the documented injury he sustained during service. *When making this determination, the examiner should remain mindful of the fact that the Veteran is competent to say he sustained injury to his hips in the incident in service, even if not actually documented in his STRs. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) and Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board will have the ultimate responsibility of determining whether his lay testimony concerning this also is credible to, in turn, have probative value. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) So in determining the etiology of the current bilateral hip disorder, the examiner should consider whether it is consistent with the type of injury alleged - if assuming, for the sake of argument, it occurred. With respect to the skin disorder of the feet (tinea pedis), the examiner should provide an opinion as to the likelihood (very likely, as likely as not, or unlikely) that any currently diagnosed skin disorder of the feet, including especially tinea pedis, is attributable to the Veteran's military service - especially to the documented manifestation of this condition during his service. The term "as likely as not" (at least 50 percent probability) does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. To facilitate making these important determinations, it is absolutely imperative that the examiner(s) have the opportunity to review the evidence in the claims file, including a complete copy of this remand, for the pertinent medical and other history. The examiner(s) must discuss the rationale of each opinion, whether favorable or unfavorable, if necessary citing to specific evidence supporting or against each claim. Advise the Veteran that should his symptoms be unobservable on the date of his scheduled examination, he should inform VA of that fact and reschedule another examination on another date. He is hereby advised that failure to cooperate in the development of his claims, such as by not reporting for these additional VA examinations, without good cause, may have adverse consequences on his pending claims. 38 C.F.R. § 3.655. 2. Then readjudicate these remaining claims in light of the additional evidence. If either claim is not granted to the Veteran's satisfaction, send him and his representative another SSOC and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of any remaining claim. The Veteran has the right to submit additional evidence and argument concerning the claims the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs