Citation Nr: 21013210 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 12-22 285 DATE: March 9, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. Entitlement to service connection for a sleep disorder, including sleep apnea, is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for a right knee disability is remanded Entitlement to service connection for a skin condition, including as an undiagnosed illness, is remanded. Entitlement to service connection for joint pain, including as an undiagnosed illness, is remanded. FINDINGS OF FACT 1. Over the entire appeal period, the Veteran has not been shown to have more than Level I hearing loss in his right or left ear. 2. Over the entire appeal period, the preponderance of the evidence is against finding that the Veteran has had a sleep apnea disability. 3. Over the entire appeal period, the preponderance of the evidence is against finding the Veteran has additional sleep symptomatology which is not associated with his already service-connected psychiatric disorder. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.385, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.85, Diagnostic Code 6100, 4.86. 2. The criteria for service connection for sleep apnea or for any functional impairment due to sleep symptomatology are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1976 to May 1976, from November 1990 to June 1991, from October 2001 to August 2003, and from May 2005 to September 2005. He has additional reserve service. This matter is before the Board of Veterans’ Appeals (Board) on appeal of January 2011, May 2011, September 2011,and November 2020 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned at a hearing in November 2017. In May 2018, the Board remanded the claim for additional development. 1. Entitlement to an initial compensable rating for bilateral hearing loss The Veteran seeks an increased rating for his service-connected bilateral hearing loss disability. The condition is currently rated as noncompensable. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Evaluations of defective hearing are based on organic impairment of hearing acuity, as measured by the results of controlled speech discrimination testing, together with the average hearing threshold level, as measured by pure tone audiometry tests, in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz. See 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Id. Pursuant to the VA rating schedule, the assignment of a disability rating for hearing impairment is derived by a purely mechanical application of the rating schedule to the numeric designations derived from the results of audiometric evaluations. Martinak v. Nicholson, 21 Vet. App. 447 (2007); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Examination reports, however, are required to include full descriptions of the functional effects caused by a hearing disability. Martinak, 21 Vet. App. at 455. Other than in exceptional cases of hearing loss, VA arrives at the proper designation of hearing loss in each ear by mechanical application of 38 C.F.R. § 4.85, Tables VI and VII, to arrive at a rating based upon the respective Roman numeral designations for each ear. Exceptional hearing loss exists if there is 30 decibels or less of loss at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz; or 55 decibels or more at all relevant frequencies. 38 C.F.R. § 4.86. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Separate evaluations may be assigned for different periods of time based on the facts found when an initial evaluation is disputed following a grant of service connection. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA will resolve reasonable doubt in favor of the claimant when there is an approximate balance of positive and negative evidence regarding any material issue. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. Initially, a VA hearing loss examination was provided in February 2011. At this examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 20 30 45 LEFT 15 20 50 50 The average pure tone threshold for the right ear was 28.75 and for the left ear was 33.75. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 96 percent in the left ear. There is no indication of any exceptional pattern of hearing impairment. The February 2011 audiometric test results equate to the assignment of Level I hearing loss for both ears upon application of Table VI which corresponds to a noncompensable rating when applied to Table VII. See 38 C.F.R. § 4.85. In November 2017, the Veteran testified that his hearing had worsened since the prior audiological examination in 2011. In May 2018, the Board remanded to claim so that a new VA hearing loss examination could be provided. An additional examination was provided in August 2019. The examiner noted the Veteran’s report of difficulty hearing at work, difficulty understanding women’s voices, and trouble hearing when background noise was present. At this examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 35 45 60 LEFT 25 30 65 65 The average pure tone threshold for the right ear was 41.25 and for the left ear was 46.25. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 98 percent in the left ear. There is no indication of any exceptional pattern of hearing impairment. The August 2019 audiometric test results equate to the assignment of Level I hearing loss for both ears upon application of Table VI which corresponds to a noncompensable rating when applied to Table VII. See 38 C.F.R. § 4.85. In August 2012, the Veteran submitted a statement which described difficulty hearing at work, needing others to repeat themselves, and watching television with the volume turned up. This statement also described the Veteran’s concern that his audiometric pure tone thresholds had increased over time. The Board acknowledges the Veteran’s concerns. However, difficulty hearing and understanding is the type of impairment fully contemplated under the schedular rating criteria for hearing loss. Further, although the pure tone thresholds have increased, they do not indicate any compensable hearing loss for VA purposes. Over the entire appeal period and under the applicable rating criteria, the Veteran’s hearing loss is noncompensable. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). Entitlement to an initial compensable rating for bilateral hearing loss must be denied. 2. Entitlement to service connection for a sleep disorder, including sleep apnea Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303 (2016). The evidence must show (1) the existence of a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Generally, without a currently diagnosed disability, service connection may not be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, recent case law held that the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability.” Thus, a specific diagnosis is not required to establish service connection for symptoms that result in functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018); see also Martinez-Bodon v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 1523 (August 11, 2020). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. Wood v. Derwinski, 1 Vet. App. 190 (1991); Washington v. Nicholson, 19 Vet. App. 362 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert V. Derwinski, 1 Vet. App. 49 (1991). In February 2010, the Veteran submitted a claim for entitlement to service connection for “sleep problems.” In May 2018, the Board noted a May 2002 sleep study found the Veteran did not have significant sleep apnea, but he experienced periods of low oxygenation during sleep. The claim was remanded to obtain a VA sleep disorders examination and opinion addressing whether the Veteran had a current sleep disorder rather than sleep symptomatology associated with his service-connected psychiatric disorders. In July 2019 a VA sleep apnea examination was provided. The Veteran reported that he had difficulty staying asleep, woke up due to nightmares, and was not known to snore or have breathing difficulty while sleeping. He used medications to sleep, but he did not use any breathing assistance device. The examiner noted a prior sleep study form the early 1990s did not diagnose any disordered sleep breathing. He stated Veteran did not have any findings, signs or symptoms attributable to sleep apnea and remarked that the “Veteran is diagnosed with insomnia.” In June 2020, a VA respiratory conditions examination, based on a review of the medical records, was provided. The examiner observed the May 2002 sleep study did not diagnose sleep apnea and medical records included reports from the Veteran’s girlfriend that he did not snore. The June 2020 examiner also determined sleep apnea was not diagnosed. As medical professionals, the July 2019 and June 2020 VA examiners are competent to evaluate whether sleep apnea is diagnosed. Here, service connection has been established for psychiatric disorders diagnosed as panic disorder with agoraphobia, intermittent explosive disorder, and cognitive disorder. A July 2011 VA mental disorders examiner diagnosed these condition and confirmed the Veteran’s symptoms of frequent awakenings, poor quality of sleep and insomnia associated with them. As a medical professional, the July 2011 examiner is competent to describe the symptoms associated with the Veteran’s psychiatric disorders. In November 2017, the Veteran testified that he did not have sleep apnea or breathing difficulty while sleeping. He explained that his sleep problem involved difficulty getting to sleep and waking up in the middle of the night and he used medications to help him sleep. The Veteran is competent to report his experience of problems sleeping and the absence of any difficulty breathing while sleeping. The Board notes, recent VA treatment records include an August 2019 initial psychiatric consultation and diagnosis of insomnia and posttraumatic stress disorder (PTSD). The consultation note references the Veteran’s reports of sleep difficulty and waking at night. These symptoms are identical to those considered by the July 2011 VA examiner. No new or additional psychiatric sleep symptomatology, which might result in functional impairment, is described in these treatment records. The Veteran has not filed a claim seeking service connection for PTSD and the issue is not before the Board. Here, the preponderance of the evidence is against finding that the Veteran has a diagnosis of sleep apnea or any other sleep disorder. Further, the preponderance of the evidence is against finding any additional functional impairment which is not currently evaluated as part of a service-connected psychiatric disorder. The benefit of the doubt doctrine is not applicable. Service connection for a sleep disorder is not warranted. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for a right knee disability is remanded. In May 2018, the Board remanded the Veteran’s claim seeking an initial compensable rating for his service-connected right knee disability. Thereafter an increased rating of 10 percent was allowed in a November 2020 rating decision. The rating decision indicates this is a complete grant of the benefit sought. There is no indication that the Veteran limited the scope of his appeal to a 10 percent rating for his right knee or otherwise withdrew his appeal following the November 2020 rating decision. The Veteran is presumed to be seeking the maximum benefit authorized by law. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The Veteran’s right knee disability is currently rated as 10 percent disabling under Diagnostic Code 5260. Under this diagnostic code, a maximum 30 percent rating may be warranted for a limitation of flexion disability. Additionally, a higher right knee rating is potentially available if other diagnostic codes are applicable to the Veteran’s symptomatology. See 38 C.F.R. § 4.71a. Thus, a 10 percent rating for a right knee disability does not represent the maximum benefit authorized by law. The Board cannot consider the merits of a higher rating until it ensures the Veteran has been afforded due process under VA regulation. As a result, the Board finds the Veteran’s appeal of the initial rating assigned for a right knee disability must be remanded for the issuance of a supplemental statement of the case (SSOC) in accordance with 38 C.F.R. § 19.31(b). 2. Entitlement to service connection for an undiagnosed illness, characterized by joint pain, is remanded. Service Treatment Records VA has a duty to obtain any outstanding relevant records Federal records. See 38 C.F.R. § 3.159(c)(2). In addition, a remand by the Board confers on a Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In May 2018, the Board remanded the Veteran’s claims, in part, because his service treatment records from November 1990 to June 1991 appeared to be outstanding. The Board directed the RO to obtain these outstanding records. The RO was directed to seek these records until they were obtained, or it became apparent they did not exist, or it was evident that additional efforts to obtain them would be futile. In May 2019, two requests for complete medical, dental, and personnel records were sent to the Personnel Information Retrieval System (PIES). In September 2019, a PIES response reported that additional records had been provided. While additional military personnel records were associated with the claims file in January 2019, no additional service treatment records have been obtained. No other efforts to obtain these outstanding records are documented in the file. There is no formal finding of their unavailability. VA has not complied with its duty to obtain outstanding relevant Federal records and there has not been substantial compliance with the Board’s remand directives. See 38 C.F.R. § 3.159(c)(2); see also Stegall, supra. With additional review of the claims file, the Board notes service treatment records, in addition to those from November 1990 to June 1991, may also be outstanding. In September 2010 memorandum, VA issued a formal finding of unavailability of service treatment records for the Veteran’s January 1976 to May 1976 active service. This finding was entered after a general January 2010 records request, sent to the Records Maintenance Center (RMC), and a July 2010 request for 1976 records, sent to PIES, produced negative responses. The September 2010 memorandum confirmed the service treatment records currently associated with the claims file (two folders of documents submitted in April 2010), were provided by the Veteran. It is not clear that these April 2010 folders represent complete service treatment records. No records requests, beyond the January 2010 communication to the RMC and the limited request to PIES, is of record. There is no formal finding that service treatment records, other than the 1976 records, are unavailable. Thus, it is possible additional records may be available from other Federal sources. Additional efforts must be made to obtain all outstanding service treatment records. See 38 C.F.R. § 3.159(c)(2). Adequacy of Examinations/ Qualifying Chronic Disability/ Disability based on Pain VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Service connection may be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that 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, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). A “qualifying chronic disability” for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or IBS) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). In Stewart v. Wilkie, the Court of Appeals for Veterans Claims (Court) addressed the definition of a MUCMI under 38 C.F.R. § 3.317 (a)(2)(ii) and held a diagnosed condition does not constitute a MUCMI, as defined under 38 C.F.R. § 3.317 (a)(2)(ii), when both the etiology and the pathophysiology of the illness are at least partially understood in the context of the claimant’s unique circumstances. 30 Vet. App. 383 (2018) (holding VA relied on an inadequate examination when it determined a claimant’s asthma was not a MUCMI when an examiner failed to address both the etiology and pathophysiology of the condition in the context of the claimant’s unique circumstances). In other words, if either the etiology or the pathophysiology of a diagnosed condition is not at least partially understood, the condition may constitute a MUCMI. In addition, under recent caselaw, service connection may be allowed for a current disability of pain, without an underlying diagnosis. For pain to be considered a disability, it must result in functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018). In January 2010 the Veteran filed a claim seeking service connection for joint aches. In a September 2011 statement, he asserted that his joints generally feel “pretty good” in the mornings. However, at the end of the day, after walking and using stairs while working as a construction supervisor, he has pain. In November 2017, he testified that, in addition to specific known and diagnosed orthopedic conditions (including neck, back, right knee conditions), he experiences generalized joint aches and muscle cramps throughout his body. At the time of the hearing, his right ankle was particularly weak and painful. Military personnel records confirm that the Veteran deployed in support of Operation Desert Shield/Desert Storm from December 1990 to May 1991. He served in Southwest Asia, was present in Saudi Arabia, and qualifies as a Persian Gulf Veteran. Initially, August 2011 and February 2015 VA joint and Gulf War examinations were provided to evaluate the Veteran’s “joint aches” and to opine whether they were related to a Gulf War illness. During these examinations, the Veteran reported many of his joint pain symptoms were onset during his 1990 to 1991 period of active service. In May 2018, the Board found these evaluations were inadequate and remanded the claim so that new examinations could be provided. The Board noted the August 2011 examiner found the Veteran’s hip, knee, and ankle aches were not associated with any known pathology. He also found these painful joints caused the Veteran to have difficulty with daily activities (including chores, shopping, exercise, sports, and recreation.) However, the August 2011 and February 2015 examinations did not include etiology opinions fully addressing the Veteran’s claim. In remanding the claim, the Board directed that a new examination be provided. The examiner was asked to expressly consider the Veteran’s symptoms (muscle and joint pain) and determine the nature and etiology of any disability diagnosed over the appeal period. For any diagnosed disability, the examiner was asked to opine whether it was directly related to the Veteran’s active service. If no disability was diagnosed, the examiner was asked to determine whether there was an undiagnosed illness related to the Veteran’s service in the Persian Gulf. New VA examinations were provided in July 2019. The examiner evaluated the Veteran’s shoulders and knees, but he did not provide any evaluation of his hips, ankles, or muscles. No opinions as to direct service connection were provided. The July 2019 examiner found the Veteran did not have any signs of symptoms that might represent an “undiagnosed illness” or “diagnosed medically unexplained chronic multisymptom illness,” but no supporting rationale was included with the findings. The July 2019 examinations did not consider the Veteran’s complete medical history or provide the medical opinions required by the Board’s remand. Additional VA examinations must be obtained. See Stefl, supra; see also Stegall, supra. 3. Entitlement to service connection for a skin condition, including as an undiagnosed illness, is remanded. The Veteran seeks service connection for a skin disability. He testified that the condition was onset during his service in the Gulf War. He submitted photographs documenting outbreaks of his skin problems. In May 2018, the Board remanded the claim and directed that a VA examination be provided to evaluate the nature and etiology of the claimed skin disorder, including an evaluation of whether it was directly related to the Veteran’s active service or represented an undiagnosed condition related to the Veteran’s service in the Persian Gulf. A VA skin diseases examination was provided in July 2019. The examiner reviewed the Veteran’s medical records and observed the Veteran had a skin condition, but there were no visible lesions at the time of the examination. No etiology opinions were provided. This examination is inadequate to evaluate the claim and it failed to provide the opinion requested in the Board’s prior remand. Id. The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete service treatment records. Documents all efforts to obtain these records including efforts to contact the service department, or other appropriate records repository where such records may be located. Efforts to obtain this information should only end if the evidence, or information, does not exist or further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). If records are deemed to be unavailable, document this unavailability in the file. 2. Send the Veteran and his representative a supplemental statement of the case that addresses any benefit denied in his claim for an increased rating for a right knee disorder. 3. Schedule the Veteran for a VA examination to evaluate the nature and etiology of any joint and muscle pain disability, particularly in the area of the bilateral hips, left knee, and bilateral ankles. The examiner must review the entire claims file. The examiner must identify all diagnosed joint and muscle pain disabilities, excluding any disabilities that are already service connected. For each diagnosed joint and muscle pain disability identified, the examiner must opine: As to whether the etiology of the diagnosed condition is at least partially understood in the context of the Veteran’s circumstances. As to whether the pathophysiology of the diagnosed condition is at least partially understood in the context of the Veteran’s circumstances. For each diagnosed joint and muscle disability identified where BOTH the etiology and pathophysiology are at least partially understood in the context of the Veteran’s circumstances, the examiner must opine as to whether the disability is at least as likely as not (a degree of probability of 50 percent or higher) related to the Veteran’s military service, to include any reports of joint or muscle pain or treatment in the service treatment records or as indicated in the August 2011 VA and/or February 2015 VA joints examinations. If no joint or muscle pain disability is diagnosed at any point during the appeal period, the examiner must opine whether it is at least as likely as not that the Veteran has muscle and/or joint pain that results in functional impairment of earning capacity. If so, the examiner must opine as to whether it is at least as likely as not related to his military service, to include any reports of joint or muscle pain or treatment in the service treatment records or as indicated in the August 2011 VA and/or February 2015 VA joints examinations. If no joint and muscle pain disability is diagnosed AND no current joint and/or muscle pain results in functional impairment in earning capacity that is related to military service, the examiner is asked to provide responses to the following: A) Identify the Veteran’s objective indications of a disability. “Objective indications” of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost form work, the veteran having sought treatment for his symptoms, and change in the veteran’s appearance, physical abilities, and mental or emotional attitude. B) If the Veteran’s objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran’s departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. A complete rationale must be provided for all opinions expressed. The examiner must include a complete rationale in support of his opinion. The examiner is advised that the Veteran is competent to report his experience of pain or other observable symptomatology. If the examiner dismisses any reported pain, a complete rationale for doing so must be provided. The absence of contemporaneous medical records, without additional rationale, is insufficient to support dismissing the Veteran’s lay repots of observable symptomatology. 4. Schedule the Veteran for a VA examination for a skin disability. The examiner must review the claims file, including service treatment records, photographs, statements submitted by the Veteran, and his November 2017 testimony. The examiner must identify all diagnosed skin disabilities present during the course of the appeal. For each diagnosed skin disability present during the course of the appeal, the examiner must address the following: Is the etiology of the skin disability at least partially understood in the context of the Veteran’s circumstances? Is the pathophysiology of the skin disability at least partially understood in the context of the Veteran’s circumstances? For each diagnosed skin disability where both the etiology and pathophysiology of the disability are at least partially understood in the context of the Veteran’s circumstances, the examiner must opine whether it is at least as likely as not (a degree of probability of 50 percent or higher) that the disability is related to the Veteran’s military service, to include his report of skin problems onset during service in the Persian Gulf. If no skin disability is diagnosed at any point during the appeal period, the examiner is asked to opine as to whether the Veteran’s symptoms of a skin condition cause functional impairment in earning capacity. If so, the examiner should opine as to whether the current symptoms are at least as likely as not related to the Veteran’s military service, to include his report of skin problems onset during service in the Persian Gulf. If no skin disability is diagnosed during the appeal period and if the examiner finds that the Veteran does not have skin symptoms resulting in functional loss in earning capacity that are related to military service, the examiner is asked to provide responses to the following: A) Identify the Veteran’s objective indications of a skin disability. “Objective indications” of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost form work, the veteran having sought treatment for his symptoms, and change in the veteran’s appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). B) If the Veteran’s objective indications of a skin disability cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran’s departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. The examiner is advised that the Veteran is competent to report his experience of observable symptomatology. If the examiner dismisses any reported observable symptomatology, a complete rationale for doing so must be provided. The absence of contemporaneous medical records, without additional rationale, is insufficient to support dismissing the Veteran’s lay repots of observable symptomatology A complete rationale must be provided for all opinions expressed. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeanne Celtnieks The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.