Citation Nr: 1318231 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-46 081 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Whether there was clear and unmistakable error in an October 11, 2001 rating decision denying entitlement to service connection for a disability of the right lower leg, specifically, a scar. 2. Entitlement to service connection for the residuals of an injury to the right leg and/or shin (other than a scar), claimed as a right lower leg disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from January 1965 to January 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. This case was originally addressed by the RO on the basis of whether new and material evidence had been submitted sufficient to reopen the Veteran's previously-denied claim for service connection for a disability of the right lower leg. However, for reasons which will become apparent, the issue has been recharacterized on the title page of this decision. Issue number 1 on the title page has been raised by the record, as will be further explained below. FINDINGS OF FACT 1. Service medical records show treatment during service for a superficial laceration, as well as cellulitis, of the right tibia. 2. At the time of a service separation examination in January 1969, there was present a one-inch scar on the anterior portion of the Veteran's right lower leg. 3. The rating decision of October 11, 2001, which denied entitlement to service connection for a right lower leg disability, essentially on the basis that the Veteran's inservice injury/treatment resulted in no "permanent residual or chronic disability," was neither adequately supported by nor consistent with the evidence then of record with regard to the scar. 4. A chronic residual of injury to the right lower leg, specifically, a scar, clearly had its origin during the Veteran's period of active military service. 5. Chronic residuals of an injury to the right leg and/or shin other than a scar are not shown to have been present in service, or any time thereafter. CONCLUSIONS OF LAW 1. The decision of the RO on October 11, 2001 denying entitlement to service connection for a right lower leg disability, specifically residual scarring, was clearly and unmistakably erroneous. 38 U.S.C.A. § 5112 (West 2002); 38 C.F.R. § 3.105(a) (2012). 2. A scar as the residual of injury to the right lower leg was incurred in active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 3. Chronic residuals of an injury to the right leg and/or shin other than a scar were not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) is not applicable to claims involving clear and unmistakable error. See Simmons v. Principi, 17 Vet. App. 104, 109 (2003); see also Livesay v. Principi, 15 Vet. App. 165 (2001). However, as to the claim involving entitlement to service connection for the residuals of injury to the right leg and/or shin other than a scar, the requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2002) have been met. There is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of his application. In that regard, VA notified the Veteran in January 2009 of the information and evidence needed to substantiate and complete his claim, to include notice of what part of that evidence was to be provided by him, and what part VA would attempt to obtain. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim. As to the issue currently before the Board, there is no evidence that additional records have yet to be requested, or that additional VA examinations are in order. Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, which includes his multiple contentions, as well as service treatment records, VA (including Virtual VA) treatment records and examination reports, and a statement from the Veteran's ex-wife. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to that 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). Clear and Unmistakable Error Pursuant to applicable law and regulation, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection may also be granted for disease initially diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Significantly, previous determinations which are final and binding, including decisions of service connection, are to be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision is to be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a) (2012). The United States Court of Appeals for Veterans Claims (Court) has provided the following guidance with regard to a claim of clear and unmistakable error: In order for there to be a valid claim of clear and unmistakable error, there must have been an error in the prior adjudication of the claim. Either the correct facts, as they were known at the time, were not before the adjudicator, or the statutory or regulatory provisions extant at the time were incorrectly applied; the claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The Court in Russell further stated: Errors that would not have changed the outcome are harmless; by definition, such errors do not give rise to the need for revising the previous decision. The words 'clear and unmistakable error' are self-defining. They are errors that are undebatable, so that it can be said that reasonable binds could only conclude that the original decision was fatally flawed at the time it was made. A determination that there was clear and unmistakable error must be based on the record and the law that existed at the time of the prior AOJ (agency of original jurisdiction) or Board decision. Id. at 313-14. In determining whether there is clear and unmistakable error, the doctrine of reasonable doubt in favor of the Veteran under 38 U.S.C.A. § 5107(b) (West 2002) is not for application, inasmuch as error, if it exists, is undebatable, or there was no error within the meaning of 38 C.F.R. § 3.105(a). Id. The Court has consistently stressed the rigorous nature of the concept of clear and unmistakable error. "Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). "Clear and unmistakable error requires that error, otherwise prejudicial, must appear undebatably." Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). "It must be remembered that clear and unmistakable error is a very specific and rare kind of error." Fugo v. Brown, 6 Vet. App. 40, 43 (1993). In Russell, Fugo, and other decisions, the Court has emphasized that merely to aver that there was clear and unmistakable error in a rating decision is not sufficient to raise the issue. The Court has further held that simply to claim clear and unmistakable error on the basis that previous adjudications have improperly weighed the evidence can never rise to the stringent definition of clear and unmistakable error. In the present case, a review of the record extant at the time of the aforementioned October 11, 2001 rating decision discloses that, in November 1967, while in service, the Veteran lacerated his leg while stepping onto a truck ramp. Noted at the time was a superficial laceration over the Veteran's right tibia, which was cleansed, and the edges approximated. Approximately two months later, the Veteran was seen for a complaint of pain over his right tibia with accompanying erythema which reportedly began the previous day, but which spread "very rapidly." Noted at the time was that the Veteran had an old injury in November 1967 which, following treatment, looked "well healed." However, the Veteran's current wound appeared slightly infected, necessitating treatment with antibiotics. Approximately two days later, the Veteran received a diagnosis of cellulitis of the right leg. Significantly, at the time of a service separation examination in early January 1969, there was noted a 1-inch scar on the anterior portion of the Veteran's right lower leg. At the time of the aforementioned rating decision on October 11, 2001, it was noted that service medical records dated in November 1967 showed evidence of a superficial laceration to the right tibia, which was subsequently cleaned and treated with a bandage. Further noted was that, on another occasion in January 1968, the Veteran was diagnosed with cellulitis of the right leg, which was treated and resolved "without any noted residuals." Significantly, that rating decision indicated that the Veteran's separation examination, which was dated in early January 1969, "revealed no abnormalities involving the right lower extremity," and was "within normal limits." Based on the aforementioned findings, the RO concluded that, while there was a record of treatment in service for various right lower leg problems, "no permanent residual or chronic disabilities subject to service connection (was) shown by the service medical records or demonstrated by evidence following service." Regrettably, that determination was neither adequately supported by nor consistent with the evidence then of record. Rather, based on a review of pertinent evidence, "reasonable minds" could only conclude that the original rating decision which denied entitlement to service connection for a right lower leg disability, to the extent that rating decision denied service connection for a "scar," was fatally flawed at the time it was made. Under the circumstances, the rating decision of October 11, 2001 was clearly and unmistakably erroneous. Moreover, based on a review of service treatment records and the Veteran's separation examination, it is at least as likely as not the case that the 1-inch scar noted at the time of the Veteran's separation examination was, in fact, causally related to the superficial laceration and cellulitis of the right tibia for which the Veteran received treatment in service. Accordingly, an award of service connection for that scar is in order. Service Connection To the extent the Veteran seeks entitlement to service connection for a disability of the right lower leg other than a scar, the Board notes that, in order to establish service connection for a claimed disability, there must be competent evidence of that disability; medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and competent evidence of a nexus between the claimed inservice disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). In the present case, and as noted above, during service, the Veteran received treatment for what was described as a superficial laceration of his right tibia, as well as cellulitis in the same anatomical area. However, as of the time of the aforementioned service separation examination in early January 1969, and with the exception of the aforementioned 1-inch scar, the Veteran's right lower extremity was entirely within normal limits, and no pertinent diagnosis was noted. In point of fact, the earliest clinical indication of the presence of pathology of the right lower extremity is revealed by VA treatment records dated in 2008, almost 40 years following the Veteran's discharge from service, at which time there was noted the presence of degenerative joint disease of the knees, in conjunction with vascular insufficiency of the bilateral legs. Significantly, following a VA examination for compensation purposes in March 2009, which examination involved a full review of the Veteran's claims folder and medical records, there was noted only a slightly white circular area of skin over the midtibial area of the Veteran's left (right?) lower extremity, with no evidence of any scar. In the opinion of the examiner, following an examination of the Veteran and a review of all pertinent medical evidence of record, there was no evidence of any disability (including any scarring or muscle injury of the right lower extremity) resulting from the Veteran's inservice superficial laceration and cellulitis of the right lower extremity. The pertinent diagnosis noted was "no current diagnosis." In evaluating the Veteran's claim, the Board has a duty to assess the credibility and weight to be given to the evidence of record. See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). In that regard, the Veteran argues that he currently suffers from a disability of his right lower extremity (including arthritis and/or vascular disease) as a result of his inservice cellulitis and laceration. However, there currently exists no evidence that the Veteran's right lower extremity disabilities (with the exception of the aforementioned scar) are in any way related to or the result of an incident or incidents of his period of active military service. The Veteran's statements and history, it should be noted, when weighed against the objective evidence of record, are neither credible nor of particular probative value. Significantly, the Veteran, as a lay person, is not competent to create the requisite causal nexus for the disability at issue. Rather, evidence which requires medical knowledge must be provided by someone qualified as an expert by knowledge, skill, experience, training, or education, none of which the Veteran possesses. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Based on the aforementioned, the Board is unable to reasonably associate the Veteran's right lower extremity disabilities (other than the aforementioned scar) with his period of active military service. Accordingly, the Veteran's claim for service connection must be denied. ORDER The October 11, 2001 rating decision which denied entitlement to service connection for a right leg disability was clearly and unmistakably erroneous in denying service connection for residual scarring; accordingly, service connection for a scar of the right lower leg is granted. Service connection for the residuals of injury to the right leg and/or shin other than a scar is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs