Citation Nr: 1329396 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 10-32 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for bilateral leg cellulitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife, P. M. ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran had active military service from December 1965 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge in October 2011. A written transcript of that hearing was prepared and incorporated into the evidence of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board finds that additional development is required before a decision can be rendered on the merits of the claims for service connection for bilateral leg cellulitis. The law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. In this case, the evidence of record reveals normal skin and lower extremities evaluation at induction. In this regard, a veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3- 2003. In Wagner v. Principi, the Federal Circuit Court held that, when no preexisting condition is noted upon entry into service, a veteran is presumed to have been sound upon entry, and the burden then shifts to VA to rebut the presumption of soundness. 370 F.3d 1089, 1096 (Fed. Cir. 2004). Therefore, according to the Federal Circuit Court in Wagner, to rebut the presumption of soundness under 38 U.S.C.A. § 1111, there must be clear and unmistakable evidence that (1) a veteran' s disability existed prior to service, and (2) that the preexisting disability was not aggravated during service. See id.; see also VAOPGCPREC 3- 2003. The second prong may be rebutted with clear and unmistakable evidence establishing that either (1) the disability underwent no increase in severity during service, or (2) any increase in severity was due to the natural progression of the condition. See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (citing Wagner, 370 F.3d at 1096). By "clear and unmistakable evidence" is meant that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). Again, the entrance examination showed normal findings and thus the presumption applies. However, the Veteran testified at the October 2011 hearing before the undersigned Veterans Law Judge that he had symptoms of cellulitis prior to entering service. The Veteran also stated his father had the same condition he has. He and his representative clarified that it is their contention the cellulitis in his legs is a preexisting condition prior to entering his military service and that it was aggravated by service. Therefore, the question arises as to whether the record contains clear and unmistakable evidence showing that such disorder preexisted service. In this regard, a VA examination and medical opinion are necessary to address this issue and to determine the nature and etiology of any bilateral leg cellulitis disorder that may be present. Again, the Veteran has provided lay statements to the effect that the cellulitis of his legs preexisted service and was aggravated during service. However, as noted above, the question of whether his disorder preexisted service will be addressed by the VA examiner, pursuant to the instant remand. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate specialist in order to determine the nature and etiology of any bilateral leg cellulitis shown to be present. The examiner is requested the following information: a. On the basis of the clinical record, can it be concluded with clear and unmistakable certainty that any currently diagnosed cellulitis of the legs preexisted his entry into active military service, and b. If a cellulitis disorder clearly and unmistakably preexisted service, can it be concluded with clear and unmistakable certainty that it was not aggravated to a permanent degree in service beyond that which would be due to the natural progression of the disease? c. If bilateral leg cellulitis did not preexist service, examiner is requested to provide an opinion as to whether it is as least as likely as not (50 percent probability or greater) whether it is etiologically related to his period of active service. All appropriate testing must be conducted and these results must be included in the examination report. A clear rationale for all opinions should be provided, along with a discussion of the facts and medical principles. The claims folder and a complete copy of this REMAND must be available for review by the examiner in conjunction with the examination and this fact should be acknowledged in the report. Additionally, the examiner should consider the Veteran's in-service treatment records, VA treatment records, and any private treatment records. Furthermore, the examiner should also discuss the Veteran's lay statements regarding history and chronicity of symptomatology when discussing the offered opinion. The clear and unmistakable evidentiary standard is an onerous one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Atkins v. Derwinski, 1 Vet. App. 228, 232 (1991)). Clear and unmistakable evidence is evidence that "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanserson v. West, 12 Vet. App. 254, 258-59 (1999) (citing definition of "clear and unmistakable error" in Russell v. Principi, 3 Vet. App. 310, 313-14 (en banc)). However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 2. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).