Citation Nr: 1208899	
Decision Date: 03/08/12    Archive Date: 03/19/12

DOCKET NO.  09-39 269	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUE

Entitlement to service connection for left shin cellulitis.


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

Hallie E. Brokowsky, Counsel







INTRODUCTION

The Veteran had active service from February 1969 to December 1970.    

These claims come before the Board of Veterans' Appeals (Board) on appeal of a March 2008 rating decision of the Department of Veterans Affairs (VA) RO in Portland, Oregon.

The Board notes that, pursuant to his request in his October 2009 substantive appeal, the Veteran was scheduled for a Travel Board hearing at the RO in December 2011; however, he failed to report for that hearing.  As he has not provided cause for his failure to appear or requested another hearing, the Veteran's hearing request is deemed withdrawn and the Board will proceed with its review on the present record.  See 38 C.F.R. § 20.704(d), (e) (2011). 


FINDING OF FACT

It has not been shown by the evidence of record that the Veteran has left shin cellulitis which is causally related to his military service.  


CONCLUSION OF LAW

Left shin cellulitis was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011).







REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Assist and Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case).  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  

In this case, the agency of original jurisdiction (AOJ) issued a notice letter, dated in October 2007, to the Veteran.  This letter explained the evidence necessary to substantiate the Veteran's claims of entitlement to service connection, and the legal criteria for entitlement to such benefits.  The letter also informed him of his and VA's respective duties for obtaining evidence.  The letter specifically informed the Veteran as to what evidence would be necessary to substantiate the element or elements that were required to establish service connection that were found insufficient in the previous denial.  In addition, a May 2008 letter from VA explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman.  The unfavorable AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice.  As such, there was no defect with respect to timing of the VCAA notice.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).

VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), and records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1).  VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim.  38 C.F.R. § 3.159(c)(4).

In this case, the claims file contains the Veteran's service treatment records and reports of VA and private post-service treatment, as well as the Veteran's own statements in support of his claims.  The record shows that the Veteran has been examined by VA in connection with his claims, and the Board finds that the examination reports are adequate for the purpose of deciding the issues on appeal.  The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. 

Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.  

Legal Criteria

Service Connection - Generally

A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).  Certain chronic diseases will be presumed to have been incurred or aggravated in service if manifested to a compensable degree within one year after service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  This presumption is rebuttable by probative evidence to the contrary.  The Board notes that 38 C.F.R. § 3.309(e) lists cirrhosis of the liver, though not hepatitis C or other forms of hepatitis.

If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim.  See 38 C.F.R. § 3.303(b).  Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent.  See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997).  

Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation.  38 C.F.R. § 3.303(c).

Analysis

Based on the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for left shin cellulitis.

The Board acknowledges that the Veteran's service medical records show that the Veteran was treated for cellulitis of the left leg during his military service; in March 1970, the Veteran reported that he fell down a ladder and had pain and swelling of the left tibial area, and he had red and tender skin.  He was diagnosed with cellulitis of the left leg, and treatment via elevation and hot soaks were recommended; a subsequent treatment note showed no evidence of cellulitis, with some swelling but no erythema.  However, his December 1970 separation examination report showed a normal physical examination, and no related complaints were noted.  See 38 C.F.R. § 3.303(a) (service connection requires that the facts "affirmatively [show] inception or aggravation . . . .").  

The Board also acknowledges that the Veteran has reported a history of cellulitis of the left shin since his service; according to his VA medical records, he reported a history of left shin cellulitis in December 2008.  However, there was no evidence of cellulitis at that time.  Additionally, at the Veteran's November 2009 VA examination, the VA examiner found that the Veteran did not have any evidence of cellulitis of the left shin.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (stating that "Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability.").  

Additionally, the weight of the evidence demonstrates no continuance of symptomatology during the years following the Veteran's discharge from service.  The Veteran did not report any continuity of symptomatology until he filed his claim in 2007.  See Shaw v. Principi, 3 Vet. App. 365 (1992) (finding that a Veteran's delay in asserting a claim can constitute negative evidence which weighs against the claim).  And, the Veteran has not provided any evidence of treatment for cellulitis since his service.  See Savage, supra (requiring medical evidence of chronicity and continuity of symptomatology); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition).  And, although the Veteran reported a history of cellulitis in December 2008 (see December 2008 VA treatment records), he did not make a reference to continuity of symptomatology at that time, or relate it to his in-service treatment.  See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).  

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  As a general matter, a layperson is not capable of opining on matters requiring medical knowledge.  See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge").  In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  In addressing lay evidence and determining its probative value, if any, attention is directed to both 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").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus).  That notwithstanding, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra.

In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  See generally Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim).  

In this case, the evidence in support of the Veteran's claims consists solely of lay evidence.  However, he specifically denied experiencing recurrent cellulitis since service at his November 2009 VA examination and did not allege cellulitis at discharge.  The Board therefore does not find the Veteran to be a credible historian regarding the existence of continuing relevant symtomatology since service.  His lay contentions in this regard are thus of very minimal, if any, probative value.  Additionally, even if the Board finds the Veteran credible as to his symptomatology, his statements are not competent to diagnose cellulitis of the left shin or link post-service left shin symptoms to his service.  See Jandreau v. Nicolson, 492 F.3d 1372 (Fed. Cir. 2007).  

Moreover, the November 2009 VA examination report concludes that the Veteran did not have cellulitis of the left shin which was causally related or aggravated by the Veteran's military service. The Board reiterates that, at his November 2009 VA examination, the Veteran denied recurrent cellulitis since service; the Veteran also denied experiencing infections and antibiotic use on the left leg since service.  
The Board also notes that the Veteran's treating provider in December 2008 found no evidence of cellulitis and did not attribute his report of a history of cellulitis to his service.  More significantly, according to the November 2009 VA examiner, the Veteran's only complaint was of left shin tenderness; there was no evidence of cellulitis in the Veteran's medical history and treatment records or upon examination.  However, the Board also points out that pain is not a disability for which service connection can be granted.  See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999).  See also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) ("A Veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the Veteran's service and the disability . . .").   

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons 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).  The Board finds that the November 2009 VA examination must be given great probative weight because the VA examiner's opinion was based on a review of the entire record and full examination, and is consistent with the Veteran's service and post-service medical treatment records; the VA examiner also provided a rationale for the opinions provided.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (stating that factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion).

In summary, while the Veteran's contentions have been considered carefully, these contentions are outweighed by the medical evidence of record showing that the Veteran did not have cellulitis of the left shin which can be attributed to active service or service-connected disability.  See Madden v. Gober, 125 F.3d 1477, 1481 (1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole).  

As there is a preponderance of evidence against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for left shin cellulitis is denied.




____________________________________________
Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs