Citation Nr: 1317658	
Decision Date: 05/30/13    Archive Date: 06/06/13

DOCKET NO.  02-17 835	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania

THE ISSUE

Entitlement to service connection for cellulitis.

(The issue of whether a clear and unmistakable error occurred in a January 2007 rating decision in failing to award an effective date earlier than May 19, 2006, for the grant of service connection and a compensable rating for scars, left fifth finger, is the subject of a separate decision.)


REPRESENTATION

Veteran represented by:	Michael W. Zimecki, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

S. B. Mays, Counsel


INTRODUCTION

The Veteran had active military service from May 1972 to May 1974.

This appeal to the Board of Veterans' Appeals (Board) is from a November 2001 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which denied the Veteran's petition to reopen his previously denied claims for service connection for cellulitis and lymphangitis. 

In June 2003, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) of the Board in support of his claims. 

In November 2003, the Board remanded the Veteran's claims to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration.  In June 2004, the AMC granted the Veteran's claim for service connection for lymphangitis.  He did not appeal the noncompensable rating or effective date assigned for the lymphangitis, so that claim is no longer at issue.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (indicating he has to separately appeal these "downstream" issues of the rating and effective date assigned for the disability).  He did, however, continue to appeal for service connection for cellulitis.

The Board issued a decision in March 2005 denying his petition to reopen this claim for cellulitis, and he appealed to the U. S. Court of Appeals for Veterans Claims (Court).  In a June 2006 Order, the Court vacated the Board's March 2005 decision and remanded the claim for readjudication in compliance with directives specified. 

In order to comply with the Court's Order, in February 2007 the Board again remanded this claim to the RO via the AMC for still further development and consideration.  Upon completion of that development, in a March 2008 supplemental statement of the case (SSOC) the AMC continued to deny this claim and returned the file to the Board for further appellate consideration of this claim.
In April 2008, the Board reopened this claim on the basis of new and material evidence but then proceeded to again remand the claim to the RO via the AMC for still further development and consideration, rather than immediately readjudicating the claim on its underlying merits.  The AMC completed the additional development requested, continued to deny the claim in the July 2008 SSOC, and returned the file to the Board for further appellate consideration of this remaining claim.

In November 2008, the Board issued a decision also continuing to deny this claim, and the Veteran again appealed to the Court.  In an October 2009 order, granting a joint motion, the Court vacated the Board's decision and again remanded the claim to the Board for further development and readjudication in compliance with directives specified.   The Veteran's attorney since has clarified in a September 2010 letter that he is continuing to represent the Veteran in this appeal, including before VA and the Board in particular.

So, once again, to comply with the Court-granted joint motion, the Board in November 2010 again remanded the claim for still further development and consideration, including affording the Veteran another VA examination for another medical nexus opinion regarding the nature and etiology of this claimed condition, including especially in terms of its alleged relationship to his military service.  After continuing to be denied, this claim since has been returned to the Board.


FINDING OF FACT

The most probative evidence indicates the Veteran does not currently have cellulitis from a left hand infection during his military service.  The only chronic residual of that infection, lymphangitis of his left fifth finger, already has been determined service connected.  A VA examiner concluded the Veteran's claimed cellulitis is not etiologically related to his service-connected lymphangitis.



CONCLUSION OF LAW

The Veteran does not have cellulitis from disease or injury that was incurred in or aggravated by his active military service or that is proximately due to, the result of, or aggravated by a service-connected disability.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.310 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

The Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist obligations.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative of any information and any medical or lay evidence not of record that is necessary to substantiate the claim, including apprising them of the information and evidence the Veteran is responsible for providing versus the information and evidence VA will obtain for him.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

These notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the 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), aff'd sub nom.  Hartman v. Nicholson, 483 F.3d 1311 (2007).  So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted.  Id., at 486.


Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

The Veteran has received all essential notice, has had a meaningful opportunity to participate effectively in the development of the claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  VCAA notice initially was provided to him in an April 2001 letter, prior to initially adjudicating his claim, so in the preferred sequence.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); see also Mayfield IV and Prickett, supra.  Additional VCAA notice was provided in March 2004, March 2007, May 2008, and January 2012 letters.  These notice letters advised him of the evidence needed to substantiate his claim and explained what evidence VA was obligated to obtain or to assist him in obtaining and, conversely, what information or evidence he was responsible for providing.  38 U.S.C.A. § 5103(a).  See Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The AMC has also informed him of the "downstream" disability rating and effective date elements of his claim.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom.  Hartman v. Nicholson, 483 F.3d 1311 (2007).  At any rate, since the Board is denying his underlying claim for service connection, the downstream disability rating and effective date elements of his claim are ultimately moot.  Consider also that, since providing the most recent VCAA notice letter, the AMC has readjudicated this claim in an April 2012 SSOC.

So, here, even if there arguably is any deficiency in the notice to the Veteran or the timing of the notice it is harmless error.  See 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 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).

He also is represented in this appeal by a private attorney, who, given his accreditation, is presumably aware of the type of evidence and information needed to substantiate this claim - including of whose specific responsibility, the Veteran's versus VA's, it is for obtaining this supporting evidence.  Moreover, in their pleadings and other statements and hearing testimony, they have evidenced their actual knowledge of the evidence needed to substantiate this claim.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate a claim).

VA also fulfilled its duty to assist the Veteran with this claim by obtaining all potentially relevant evidence in support of this claim that is obtainable, and therefore appellate review of this claim may proceed without prejudicing him.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). 

The RO and AMC obtained his service treatment records, service personnel records, private medical records, and VA treatment records.  He also has undergone VA compensation examinations to determine the current nature and etiology of the claimed condition.  The Board most recently remanded the claim in November 2010 specifically to determine whether he has cellulitis and, if confirmed he does, for a medical nexus opinion concerning whether it is related to his service in the military, including by way of a service-connected disability like his lymphangitis.  He had this requested VA examination in April 2011, and the Board finds that there was compliance, certainly substantial compliance, with its November 2010 remand directives.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998).

Hence, no further notice or assistance to him with this claim is required.  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).  Given all that has occurred, it is difficult to discern what additional guidance VA could have provided him regarding what further evidence he should submit to substantiate this claim.  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims.").  See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand, especially yet another remand, would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran).

Regarding the hearing he had before the Board, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge chairing a hearing to fulfill two duties:  (1) fully explain the issue(s) and (2) suggest the submission of evidence that may have been overlooked and that might be advantageous to the claimant's position.  Here, during the June 2003 videoconference hearing, the undersigned VLJ identified the issue on appeal, which at the time was whether new and material evidence had been received to reopen this previously denied service-connection claim for cellulitis.  In discussing the case, the VLJ explained to the Veteran that the claims file contained evidence of in-service treatment of cellulitis and lymphangitis, but what was needed to substantiate the claim was a medical opinion indicating he has a chronic cellulitis infection and relating his initial infection in service to his current disability.  Information was also obtained to clarify his arguments.

The hearing officer's two-fold duty to inform the Veteran of the outstanding issues relevant and material to the claim and to suggest the submission of evidence when such evidence is missing or has been overlooked has been satisfied.  See id. at 
496-97.  The Veteran has not alleged that there were any procedural or other deficiencies in the conducting of that hearing, according to § 3.103(c)(2).  See Bryant, 23 Vet. App. at 497-98.  The Board also has not identified any hearing deficiency.  In Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly explain the material issues of medical nexus and current disability, the purpose of 38 C.F.R. § 3.103(c)(2) had been fulfilled because the record reflected that these issues were developed by VA, and there was no indication that the Veteran had any additional information to submit.

In this case, given the extensive development of the Veteran's claim based on the hearing testimony, particularly with respect to obtaining additional treatment records from the Pittsburgh VA Medical Center (VAMC), as well as having him undergo additional VA compensation examinations for additional medical opinions, the Board finds no deficiency in that videoconference hearing or in development of the claim.  See id. 

In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in exhaustive detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).


Factual Background

Service treatment records show the Veteran was treated for cellulitis in August 1972 after striking his left hand, when he experienced swelling and tenderness in his left 5th finger.  X-rays were negative.  The diagnosis was a contusion (bruise).  Two days later, he was admitted for cellulitis and an abscess on his left 5th finger.  Hospital treatment records from August to October 1972 document incision and drainage for a Staphylococcus infection of the Veteran's left 5th finger that was "allegedly" resistant to Penicillin.  The diagnosis was lymphangitis of the left 5th finger.  During the remainder of his military service, there were no signs or symptoms of this condition, bearing in mind his service ended nearly two years later, in May 1974. 

Thereafter, in February 1980, the Veteran was hospitalized at the McKeesport Hospital.  It was noted that cellulitis of the left foot had started in January 1980 (so well after the Veteran's military service ended), but that he also had a history of tiny ulcers on his hands that were almost similar to his present condition.  A left foot abscess was incised and drained.  He was given antibiotics intravenously and, thereafter, received antibiotics on an outpatient basis.  The diagnosis was cellulitis of the left foot.  

He was again hospitalized there in February 1985 for swelling of the inguinal and scrotal areas. 

In a March 1986 statement, the Veteran reported that, during service, he had undergone surgery on his left hand (apparently for an incision and drainage) and was given antibiotics.  He received similar treatment when his cellulitis recurred in his left foot in 1980, and he received treatment when it again recurred in 1985. 

During an October 1986 RO hearing, the Veteran testified that, during service, his cellulitis was limited only to his left hand.  As a result of the cellulitis of the left hand during service and the post-service recurrence in his left foot, each of these areas was now larger than the corresponding areas on the right side.  After his left hand was incised and drained during service, and soaked in Betadine solution, a skin grafting procedure was considered because the wound was not healing properly.  There were no recurrences for which he sought medical attention until 1980.   He had had an incision when his scrotal area was affected in 1985 and his last recurrence of cellulitis was again in the scrotal area in June 1986, for which he received antibiotics from a Dr. Provan, a private physician.  A service comrade testified that he had last seen the Veteran when the Veteran was taken for treatment for swelling in his left hand.  The Veteran testified that he had not experienced any post-service pain in his left hand and had not sought treatment since service for any symptoms relating to his left hand.  He had probably had a wound to his left leg (or foot) prior to his recurrence in 1980. 

A May 2001 VA outpatient record shows history of, in part, diabetes.  The Veteran related having had cellulitis of the left 5th finger, left foot, and scrotum during service and having surgical drainage from all of these sites.  He stated that, since then, he had experienced recurrent, cold cellulitis of his scrotum.  He had taken Keflex every six months or so, every year for flare-ups of cellulitis.  At the time of evaluation, he reported pain in his left 5th finger and swelling of his left foot.  In September 2001, he declined surgery for a draining scrotal cyst. 

At a May 2002 RO hearing the Veteran testified that, when hospitalized in 1972 during service, he was told that he had a combination of lymphangitis and cellulitis.  He could not however recall any recurrences of cellulitis during his military service.  He had his first post-service flare-up in 1980 in his left foot.  After his hospitalization in service he was not given any medication or follow-up treatment.  But he had constantly been on medication since the 1980 flare-up.  He continued to have drainage from a scrotal infection.  A VA physician informed him that diabetes and cellulitis go hand-in-hand.

During his additional June 2003 videoconference hearing before the undersigned VLJ of the Board, the Veteran testified that his initial infection during service was due to a cut on his left hand.  He had told physicians that treated him in 1980 for his left foot infection, when they were not sure what had caused the infection, that it was cellulitis because he had experienced the same symptoms during service and the physicians had agreed that it was cellulitis.  He had continued to take antibiotics since his 1980 flare-up.  And he continued to have scrotal drainage.  The Veteran's representative at the time alleged that the infection the Veteran developed in 1972 had continuously remained in his system, causing flare-ups beginning in 1980.

An April 2004 VA examination was conducted, however it only addressed the severity of the Veteran's service-connected lymphangitis.  The examiner did note, however, that it was difficult to relate the event in service (referring to the Veteran's left hand infection) to any other subsequent infections that had developed since.  The examiner further indicated that the infection of the Veteran's scrotum that he had experienced since 1985 was really a sebaceous cyst that had not been adequately treated and required excision.  There was no mention of a recurrence of cellulitis due to the left hand infection in service, or any systemic cellulitis affecting the Veteran's entire body, or any correlation between the cellulitis and lymphangitis.  
In June 2008, VA provided the Veteran a compensation examination for a medical opinion concerning the nature and etiology of his claimed cellulitis.  The report of that examination indicates the Veteran did not present with cellulitis at the time of the examination.  Furthermore, the examiner indicated there was no connection between the Veteran's lymphangitis of the left 5th finger and his claimed cellulitis.  He indicated the Veteran "is reporting that he has developed abscesses to these areas: left hand, left foot and scrotum, and is claiming that these are cellulitis originating from the left 5th finger, which would not be the case."  Additionally, the examiner stated that cellulitis did not affect other areas of Veteran's body nor is it systemic.  However, the 2009 Court-granted joint motion indicated that the June 2008 VA examination was inadequate in that the examiner failed to provide a rationale for his proffered opinions.  Moreover, it was noted that the June 2008 examiner did not indicate whether the Veteran's cellulitis was directly related to his service.  Additionally, the joint motion found unclear the June 2008 examiner's conclusion that cellulitis is not a systemic condition, because as a systemic condition, it would cause death.  

In light of these noted deficiencies in the June 2008 VA opinion, the Board remanded the claim in November 2010 to afford the Veteran an additional VA compensation examination to determine the nature and etiology of any current cellulitis.  During this examination, conducted in April 2011, the Veteran reiterated that he had been treated in 1972 for a cut on his finger but unable to recall how the cut occurred.  He said that he was in the infirmary for 3 or 4 days where he received aspirin only.  (The Veteran questioned whether treating an infection with "ASA" was even appropriate).  He then recalled being transferred to the Naval hospital for about 30 days, where he was given IV antibiotics, and Keflex orally.  Thereafter, his finger was lanced and drained and the infection resolved.  However, the April 2011 VA examiner noted that the service treatment records contradict the Veteran's perception and history of events.  The examiner's review of the notes actually indicate that he originally developed a contusion from hitting his rifle with the left side of his hand and that being prescribed "ASA" would have been appropriate.  And two days later when it was determined that it was cellulitis, he was admitted to the hospital.  The examiner stated that it would not be unreasonable for two days to go by awaiting the resolution of a contusion with swelling.  There was no documentation of systemic symptoms in service.  

At any rate, the Veteran reported during the April 2011 examination that he had no cellulitis on his left hand, left foot, and/or scrotum.  Rather, he reported cellulitis on his left lower leg, as he pointed to an old superficial, well-healed, scabbed over area at the mid-anterior shin that was intact.  The examiner stated that this left lower leg area is not due to cellulitis, nor would it be due to his diabetes.  Examination of the Veteran did reveal an unsteady gait.  He was described as antalgic in appearance with a severe limp of the left leg, while walking to the examination door approximately 6 feet away.  The examiner indicated that the Veteran moaned and groaned with pain.  Because of this exquisite pain the Veteran apparently had while walking, the examiner did not have him tandem-walk or balance on his toes and heels.  However the examiner observed that the Veteran had no gait problem whatsoever when he left the examination room and walked up the hall to the elevator.  The Veteran himself reported that he had no cellulitis of the scrotum and refused examination of that area.  The examiner indicated that there was no evidence of cellulitis of any part of the Veteran's body.  The Veteran did not have any systemic effects during the 2011 examination.  Based on the examination and interview, diagnoses were:  1. Lymphangitis of the left fifth finger - resolved; 2.  Cellulitis of the scrotum - not found, resolved; 3.  Cellulitis of the left foot - not found, resolved; 4.  Cellulitis of the left lower leg - not found.   

The April 2011 VA examiner ultimately concurred with the medical providers who have examined this Veteran over the years and completed compensation examinations that the cellulitis of the left fifth finger did not lead to subsequent infection of the Veteran's left foot and scrotum.  He concluded the skin condition the Veteran pointed out during the examination was not cellulitis, that no cellulitis was found, and that the claimed cellulitis was not caused by or the result of the service-connected lymphangitis.

Whether the Veteran is Entitled to Service Connection for a Skin Disorder, Namely, Cellulitis


Service connection is granted for disability resulting from a disease contracted or an injury sustained in the line of duty during active military service or for aggravation during service of a pre-existing condition beyond its natural progression.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012).

Establishing entitlement to service connection on a direct-incurrence basis requires competent and credible evidence showing:  (1) the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and, (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995).

Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012).


Certain diseases are considered chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (generally meaning to at least 10-percent disabling) within one year following separation from service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012).

But if chronicity of disease or injury in service is not shown, or if it is legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim.  38 C.F.R. § 3.303(b).  Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity (permanency) of disease or injury in service to, in turn, link current disability to service.  See also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  That is, these second and third elements can be satisfied under 38 C.F.R. § 3.303(b) by competent and credible evidence demonstrating: (1) the condition was observed ("noted") during service; (2) symptoms of that condition continued after service; and, (3) the current condition is related to those continuing symptoms.  The United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, recently held that continuity of symptomatology only can be used to establish this required linkage between the current condition and service if the condition is one of those explicitly recognized as "chronic" under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Cellulitis is not among the conditions listed.

Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) and (b) (2012).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  Medical evidence is generally, although, as mentioned, not always, required to associate the claimed condition with a service-connected disability. 
See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); and McQueen v. West, 13 Vet. App. 237 (1999).


So service connection may be established either by showing direct service incurrence or aggravation, or by using applicable presumptions, if available, or by showing the condition claimed is secondarily related to service, again, meaning either caused or permanently worsened by a service-connected disability.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is "credible", or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must additionally determine whether it is also credible).  Only if the evidence is both competent and credible does it ultimately have probative value.  See 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")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).


Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:  (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

In ascertaining the competency of lay evidence, the Courts generally have held that a layperson is not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).  In certain instances, however, lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).

On the other hand, laypersons equally have been found not competent in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).  See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).

Competent medical evidence, as opposed to lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").  As fact finder, when considering whether lay evidence is satisfactory, the Board may not only consider internal inconsistency of statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, but also the Veteran's demeanor when testifying at a hearing when he has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

In ultimately rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  To this end, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

Turning back now to the relevant facts and circumstances of this particular case.

As noted, the Veteran's service treatment records dated from August to October 1972 show diagnoses of cellulitis and lymphangitis of the left fifth finger.  And, as also already mentioned, service connection already has been consequently granted for the lymphangitis affecting the left fifth finger.

The Veteran asserts that he additionally has cellulitis, so a recurrence of this condition that is directly related to the diagnoses of cellulitis and lymphangitis in service.  Alternatively, he claims he his recurrence of cellulitis is secondary to his already service-connected lymphangitis.  He contends that he has continued to experience cellulitis in his left hand (beginning in service in 1972), left foot (beginning in 1980), and scrotum (beginning in 1983 or 1985).  In essence, he believes his cellulitis affects different parts of his body, not just the locus of original infection, which was his left fifth finger.  See his June 2003 videoconference hearing testimony at page 23.  In fact, he states that he has taken Keflex to control his systemic cellulitis ever since the post-service 1980 incident of cellulitis of the left foot documented by private McKeesport Hospital records.  See his VA medical records documenting Keflex medication. 

The essence of his claim is that he has recurrent symptoms of cellulitis in several areas of his body (left hand, left foot, and scrotum) that may be either related directly to his in-service incurrence of cellulitis and lymphangitis on his left fifth finger or, in the alternative, related on a secondary basis to his service-connected lymphangitis.  See his former representative's July 2008 statement.  That is, the Veteran asserts that cellulitis is a "systemic" condition and his skin disorders as they have occurred over the years - on his left hand, left leg, and scrotum, since his discharge from service are related to his initial cellulitis, either directly as part of a systemic condition, or indirectly as a consequence of his service-connected lymphangitis.  See the transcript of his June 2003 hearing testimony. 

But the first and perhaps most fundamental requirement for any service-connection claim is that the Veteran must first establish he has the claimed disability or, at the very least, show he has at some point since the filing of his claim.  Boyer, 210 F.3d at 1353; 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 cannot be a valid claim because there is no present-day disability to relate or attribute to service).

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 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 evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997).

VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability.  See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997).  But in McClain v. Nicholson, 21 Vet. App. 319 (2007), the Court clarified that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim.


Certain conditions, including especially skin disorders, by their inherent nature tend to wax and wane, so at times are more prevalent or noticeable than at others.  And the Court had held that VA resultantly is obligated to evaluate skin conditions while in an "active" versus inactive stage of the disease in order to fulfill the duty to assist and get the clearest picture of the true severity of the disability.  See Ardison v. Brown, 6 Vet. App. 405 (1994).  In Voerth v. West, 13 Vet. App. 117 (1999), the Court held that a new examination was warranted in Ardison because active tinea pedis was a condition that would exist for weeks or months.  On the other hand, a flare-up lasting only one or two days not only renders a new VA examination impractical, but a "person who experiences a worsened condition only for a few days out of a year simply is less impaired than someone who suffers from the worsened condition for weeks or months."  Id., at 123.

Here, as already indicated, cellulitis was not found during the June 2008 VA compensation examination.  Nonetheless, because cellulitis was diagnosed and treated on the other earlier occasions mentioned, the Board entertained the possibility that the claimed condition may have periods of relative activity and inactivity.  For this very reason, the Veteran was afforded an additional VA compensation in April 2011 but, yet again, cellulitis was not observed or diagnosed as affecting any part of his body.  Indeed, this, and this alone, is reason to deny his claim if, as mentioned, there is not the required indication of this condition's presence since the filing of this claim.

It was not until 1980, 8 years after the in-service cellulitis and lymphangitis and 6 years after service discharge, that he was diagnosed with cellulitis after he reported having cut his foot.  The April 2011 VA examiner observed that the contemporaneous private hospital records actually refer to the affected area as a lesion, which could mean an insect bite of some kind.  The Veteran did have systemic effects during the 1980 treatment for cellulitis, consisting of a fever of 103 degrees, severe erythema, and swelling with spread of infection half way up the calf.  Ultimately, though, the April 2011 examiner clarified that the 1980 infection was introduced because the lesion became infected, not because of the left thumb infection during service some 8 years prior.

The Veteran then had a scrotal infection in 1985, per Dr. Tzeng's examination.  The April 2011 VA examiner reviewed those records, noting that the Veteran's condition on the scrotum at that time was a sebaceous cyst, and not cellulitis; a similar assessment was also noted by an April 2004 VA examiner.  More importantly, the April 2011 VA examiner explained that a contained sebaceous cyst does not cause a cellulitis or a systemic infection because it is encapsulated.  

There is no persuasive evidence linking any current diagnosis of cellulitis to the 
in-service diagnoses of cellulitis and lymphangitis, or otherwise to the service-connected lymphangitis itself either in the way of causation or aggravation.  In this regard, the April 2011 VA examiner was unable to relate the claimed condition directly to service or alternatively to a service-connected disability, referring to the lymphangitis.  Moreover, this VA examiner directly refuted the Veteran's contention and any notion that his recurrent skin symptoms are due to cellulitis that is "systemic", infecting more than just his left fifth finger.

In an effort to clarify some confusion regarding the terms "lymphangitis" and "cellulitis," the April 2011 examiner discussed the definition of both.  The examiner stated that lymphangitis is the inflammation of the lymphatic vessels draining a body part that is inflamed or infected.  He explained that it is not a separate condition; it is just used as an adjunct word to describe what is seen in surrounding infected tissue.  

The April 2011 VA examiner explained further that "cellulitis" is a spreading bacterial infection of the skin and subcutaneous tissues, usually caused by streptococcal or staphylococcal infections in adults.  It may occur following damage to skin from an insect bite, an excoriation, or other wound.  In other words, the term "cellulitis" is used for an acute bacterial infection.  The examiner stated that it does not lie dormant like a virus to flare-up at impromptu times, arbitrarily and capriciously.  Rather, he stated that a cellulitis develops because there has been some trauma causing a break in the skin allowing organisms to cause an infection generally in a compromised host.  The April 2011 examiner indicated that it will only become a systemic infection if the antibiotics prescribed are ineffective allowing the infection to spread and this condition is called septicemia.  Notably, there is no medical evidence in the claims file showing that the Veteran ever had an untreatable cellulitis that became a septicemia, per this VA examiner.  Instead, all events described were treated without residual of infection.  In response to the questions posed by the Board in its most recent remand, this examiner stated that cellulitis is not necessarily a systemic condition; it is not a chronic condition once it is treated.    

Likewise, the Veteran's alternative argument - that the claimed cellulitis is related on a secondary basis to his service-connected lymphangitis- also fails.  The April 2011 VA examiner discounted any notion that the claimed cellulitis is proximately due to, the result of, or chronically aggravated by his already service-connected lymphangitis.  Ultimately there is not the required linkage to grant service connection for cellulitis as secondary to service-connected lymphangitis, either.  38 C.F.R. § 3.310(a) and (b); also, see again Wallin v. West, 11 Vet. App. 509, 512 (1998); McQueen v. West, 13 Vet. App. 237 (1999); Velez v. West, 11 Vet. App. 148, 158 (1998).  Rather, the April 2011 VA examiner suggested that the Veteran seek medical attention to address his non service-connected bilateral venous insufficiency, as that condition puts him at risk to develop infections.   
Indeed, the April 2011 VA performed an extensive review of the claims file and examined the Veteran.  The examiner's findings are factually accurate, fully articulated, and based on sound reasoning, and therefore are highly probative evidence against the claim that the Veteran has cellulitis as a result of his military service or a service connected disability.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  

The medical treatise evidence of record which suggests that cellulitis can recur is not probative in this case.  Medical treatise evidence "can provide important support [for a claim] when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion.  Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998).  Here, though, this is not the case.  The Veteran has not presented a medical opinion favorable to the specific facts in this case in conjunction with this medical treatise evidence.

The Veteran is competent to report observable symptoms, such as a skin eruption.  However, in this case, the question of whether any current cellulitis is related to service or a service connected disability is a complex medical question, not capable of lay observation.  See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308 -09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins).  Because the record is unremarkable for any evidence suggesting the Veteran has the appropriate training, experience, or expertise to provide a medical opinion concerning a skin condition, the specific symptoms that may be ascribed to it, or its etiology and time of inception, etc., the competent and credible medical evidence on these points outweighs his unsubstantiated lay statements and testimony.

In conclusion, then, the preponderance of the evidence is against a finding that he has cellulitis related to his service, either directly as incurred in service or secondarily as caused or aggravated by a service-connected disability, namely, his lymphangitis.  And as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is inapplicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).



ORDER

The claim of entitlement to service connection for cellulitis is denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs