Citation Nr: 1331518 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 04-42 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for cellulitis of the left lower extremity. 2. Entitlement to an effective date earlier than December 30, 2010, for the assignment of a 40 percent rating for service-connected bilateral hearing loss. 3. Entitlement to an effective date earlier than September 29, 1996, for the assignment of a 10 percent rating for service-connected tinnitus, to include on the basis of clear and unmistakable error (CUE) in a September 1970 rating decision. 4. Entitlement to service connection for dizziness/vertigo, to include as secondary to service-connected bilateral hearing loss and tinnitus. 5. Entitlement to an effective date earlier than December 30, 2010, for the grant of service connection and assignment of a 30 percent initial rating for chronic adjustment disorder. 6. Entitlement to an initial rating in excess of 30 percent for service-connected chronic adjustment disorder. 7. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 3, 2012. REPRESENTATION Veteran represented by: Peter J. Sebekos, Attorney at Law WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1962 to July 1965. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions dated in April 2003 and May 2012 of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. It was determined that new and material evidence had not been received sufficient to reopen a previously denied claim for service connection for cellulitis in the former rating decision. The rating for service-connected bilateral hearing loss was increased from 20 percent to 40 percent effective December 30, 2010, in the latter rating decision. It also was determined therein that a March 2000 rating decision assigning a 10 percent rating for tinnitus effective date of October 23, 1997, contained CUE. A new effective date of September 29, 1996, was assigned. Finally, it was determined that there was no basis, to include CUE in a September 1970 rating decision that granted service connection and assigned a noncompensable rating, for the assignment of an even earlier effective date. With respect to cellulitis, the Veteran testified at a hearing before a Decision Review Officer in May 2004 and at a videoconference hearing before a Veterans Law Judge in June 2007. He was notified in April 2008 that the Veterans Law Judge who holds a hearing must participate in rendering a decision. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2013). He also was notified that, since the Veterans Law Judge who conducted the June 2007 hearing no longer was employed by the Board, he could have another hearing. The Veteran promptly responded by indicating that he did not desire another hearing. In July 2008, the Board reopened the claim and then remanded it for additional development. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in December 2010. Service connection regarding the left lower extremity was denied by the Board in April 2011. This decision was vacated by the Board in August 2011. Another remand for additional development was directed at that time. Entitlement to service connection for cellulitis of the left lower extremity once again is REMANDED to the RO for additional development based on review of the Veteran's paper claims file and his Virtual VA electronic claims file. Entitlement to an effective date earlier than December 30, 2010, for the assignment of a 40 percent rating for service-connected bilateral hearing loss also is REMANDED to the RO for additional development based on this review. Of note is that, while this review shows that CUE has been considered with respect to this issue, neither the Veteran nor his representative has alleged it. It accordingly is not characterized to include CUE here. Additionally, entitlement to an effective date earlier than September 29, 1996, for the assignment of a 10 percent rating for service-connected tinnitus is REMANDED to the RO for additional development based on the aforementioned review. Of note is that, as CUE already was found in the March 2000 rating decision, that decision is not final. It indeed essentially has been replaced by the May 2012 rating decision correcting it. 38 U.S.C.A. § 5109A(b) (West 2002); 38 C.F.R. § 3.105(a) (2013). An effective date earlier than that assigned therein other than on the basis of CUE is for consideration, in other words. CUE has not been found in the September 1970 rating decision and thus also is for consideration. As to all of these issues, it is acknowledged that there is no form certifying them to the Board (VA Form 8) or other documentation indicative of the same. Yet this is of no consequence. The standard certification form is used for administrative purposes only and does not serve to either confer or deprive the Board of jurisdiction over an issue. 38 C.F.R. § 19.35 (2013). Rather, the Board has jurisdiction to review an issue on appeal. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.101(a) (2013). An appeal consists of a timely filed notice of disagreement (NOD) and, after a statement of the case (SOC) has been furnished, a timely filed substantive appeal (VA Form 9). 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200 (2013). These requirements have been met. Entitlement to service connection for dizziness/vertigo, to include as secondary to service-connected bilateral hearing loss and tinnitus, entitlement to an effective date earlier than December 30, 2010, for the grant of service connection and assignment of a 30 percent initial rating for chronic adjustment disorder, entitlement to an initial rating in excess of 30 percent for service-connected chronic adjustment disorder, and entitlement to a TDIU prior to February 3, 2012, have been added as issues of this matter for a limited purpose. Although the Board does not have jurisdiction over them because they have not been fully appealed, the aforementioned review nevertheless reveals that additional development is warranted at this time. They thus also are REMANDED to the RO. Please note this matter has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2013). As noted by the Board in April 2011, entitlement to an effective date earlier than March 21, 2003, for the grant of service connection and assignment of a 10 percent initial rating for eczema of bilateral feet has been raised by the record. The Veteran's representative indeed presented argument in this regard in a September 2010 statement and at the December 2010 hearing. Also of note is that entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151 for macular degeneration of the right eye was deferred in a March 2013 RO rating decision. Since neither of these issues has been adjudicated yet much less fully appealed, the Board does not have jurisdiction over them. They are thus referred to the RO as the Agency of Original Jurisdiction (AOJ). Of final note is that two issues are no longer part of this matter. The Board determined in April 2011 that reconsideration of a service connection claim for PTSD, which previously had been denied, was warranted. However, the Board then denied this benefit. Service connection for intertrigo also was denied. The Veteran appealed both determinations to the United States Court of Appeals for Veterans Claims (Court). In March 2013, the Court issued a Memorandum Decision affirming the denial of service connection for intertrigo. The denial service connection for PTSD was vacated and remanded to the Board so that the identified deficiency could be addressed. The Board must comply with the Court's directives. Forcier v. Nicholson, 19 Vet. App. 414 (2006). Yet the issue of service connection for PTSD is now moot. As can be inferred from above, a rating decision was issued granting service connection for chronic adjustment disorder. This decision, which is dated in September 2012, indeed predates the Memorandum Decision. In this regard, the Board acknowledges that separately diagnosed psychiatric disorders can be service-connected. Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009). As such, it is possible for the Veteran to be awarded service connection for chronic adjustment disorder and for PTSD. This is true even though the assignment of separate ratings for each likely would constitute pyramiding and thus be prohibited. 38 C.F.R. §§ 4.14, 4.130 (2013). Nevertheless, all asserted and all currently diagnosed psychiatric conditions typically are considered together as one issue. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Indeed, in essentially agreeing with this assessment, the Veteran's attorney uses the date of receipt of the Veteran's claim for service connection for a psychiatric disorder ("originally claimed as PTSD") as justification for the grant of an earlier effective date for the grant of service connection and assignment of a 30 percent disability rating for the now service-connected chronic adjustment disorder. See May 2013 statement, page 7. The benefit sought here, service connection for an acquired psychiatric disorder however characterized, has been granted. REMAND Although the Board regrets the delay of a remand, particularly as it concerns service connection for cellulitis of the left lower extremity, adjudication of this matter cannot be undertaken at this time. Additional development must be undertaken with respect to all issues comprising it. Such development indeed is necessary to ensure that the Veteran is afforded every possible consideration. I. Cellulitis of the Left Lower Extremity VA has a duty to assist the Veteran in substantiating the benefits sought. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). If VA undertakes the effort to provide a medical examination and/or opinion with respect to an issue of service connection, whether or not obligated to do so, the duty to assist requires that it be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). A medical examination or opinion is adequate when it allows for fully informed adjudication. Id. Consideration must be given to the Veteran's entire medical history. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Ardison v. Brown, 6 Vet. App. 405 (1994). The disability present, if any, must be described in sufficient detail during the medical examination. Id. The factual premises underlying the medical opinion must be accurate. Reonal v. Brown, 5 Vet. App. 458 (1993). Finally, the rationale for the opinion also must be clearly and fully articulated. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl, 21 Vet. App. at 120. Pursuant to the Board's July 2008 remand, the Veteran underwent a VA medical examination regarding cellulitis of his left lower extremity in September 2009. Cellulitis was not detected, and therefore no medical opinion concerning it was rendered. The Board deemed positive opinions rendered by private Dr. C.B. in March 2006 and September 2007 to be insufficient in its April 2011 decision denying service connection. While this decision was vacated in August 2011, the deficiencies raised regarding Dr. C.B.'s opinions remained. Another medical examination complete with opinion therefore was directed. It was conducted in October 2011, but once again cellulitis was not found. Thus, no medical opinion concerning it was rendered. There is, in sum, still no sufficient medical opinion of record. The Board cannot adjudicate the Veteran's entitlement to service connection without such an opinion. Arrangements therefore must be made for another VA medical examination complete with medical opinion. Acknowledgement is given to the argument of the Veteran and his representative that the VA medical examination should be conducted by a dermatologist. The Board's July 2008 remand did set forth this requirement, but the September 2009 examination did not follow it. Neither did the October 2011 examination, although it is of note that the Board's August 2011 remand did not contain this requirement. Each examination rather was conducted by a physician's assistant. However, the Board's now vacated April 2011 decision did not find the aforementioned argument to be persuasive. No apparent reason exists to find differently now. Indeed, the Veteran has the right to compliance with the directives of a Board remand. Stegall v. West, 11 Vet. App. 268 (1998). Yet substantial compliance rather than strict compliance is all that is necessary. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The failure to comply with the requirement that a dermatologist perform an examination is not enough to trigger a remand directive for another examination , in other words. Yet another examination is being directed on remand for other reasons. Given the complexities involved, examination by a specialist would be useful. This specialist, whether physician or otherwise, must be in the field of infectious disease. Review of medical articles submitted by the Veteran and/or his representative supports this selection over that of dermatology. With respect to the medical opinion, the following is notable. Service connection means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred in service, or if preexisting service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). There accordingly generally must be a relationship between a current disability and the in-service incurrence or aggravation of an injury or disease. Hickson v. West, 12 Vet. App. 247 (1999); Barr, 21 Vet. App. at 303. An in-service injury or disease is undisputed. Service treatment records reflect that the Veteran developed cellulitis of the left lower extremity after bowling and was hospitalized for it for approximately a month in January and February 1964. It follows from the above that the existence of a relationship between this in-service injury or disease and current left lower extremity cellulitis is unclear. Of note is that consideration should be given in that regard to private treatment records showing he had cellulitis of an unspecified foot in June and July 1990 after stepping on a nail and to VA treatment records documenting his report in October 2002 of two severe bouts of cellulitis to include of the left foot, one of which was in 1998, as well as an incident of cellulitis of the left lower extremity after starting testosterone in July 2010. The Veteran therefore contends that his in-service cellulitis of the left lower extremity made him susceptible to getting cellulitis there again following events like the aforementioned. He points out that he does not get cellulitis anywhere else. Prior to answering this relationship question, however, it additionally is unclear whether or not the Veteran has cellulitis of the left lower extremity as a current disability. A current disability exists when there is a disability at the time a claim is filed or at any time during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran and his wife L.K. contend that he has had problems with this extremity, to include bouts of cellulitis, ever since service. This includes during the period on appeal from March 2003, when he filed his claim, to present. He and his wife are lay persons because there is no indication that either has a medical background. A lay person is competent only with respect to that which the lay person can personally experience or observe in another. Layno v. Brown, 6. Vet. App. 465 (1994). A lay person thus is competent to identify a condition when, among other things, it is simple. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Examples of simple conditions include flat feet, a dislocated shoulder, certain skin ailments, tinnitus, and varicose veins. Jandreau, 492 F.3d at 1372; Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); Charles v. Principi, 16 Vet. App. 370 (2002); Falzone v. Brown, 8 Vet. App. 398 (1995). An opinion regarding whether cellulitis is simple enough that a lay person is competent to identify it is required. An opinion on whether or not the Veteran's cellulitis manifested during the period on appeal, to include the bouts of cellulitis he and his wife L.K. report therein, if they are found competent to do so, as well as the aforementioned July 2010 VA treatment record containing a diagnosis made after starting testosterone, is a disability also is required. A purely acute condition that fully resolves, even if recurring, does not qualify as a disability. An example is the common cold. Yet a condition that includes active and inactive stages, or flare ups and dormancy, does qualify as a disability. Certain skin ailments are examples. Ardison, 6 Vet. App. at 405. II. Bilateral Hearing Loss and Tinnitus The Board shall decide an appeal only after affording the appellant an opportunity for a hearing. 38 U.S.C.A. § 7107(b) (West 2002). A hearing on appeal therefore will be granted if the appellant or his representative expresses a desire to appear in person. 38 C.F.R. § 20.700(a) (2013). Hearings may be requested when submitting the substantive appeal (VA Form 9) or, subject to certain restrictions, at any time thereafter. 38 C.F.R. § 20.703 (2013). In May 2013, the Veteran's attorney submitted a substantive appeal (VA Form 9) with respect to the claims for an effective date earlier than December 30, 2010, for the assignment of a 40 percent rating for service-connected bilateral hearing loss and for an effective date earlier than September 29, 1996, for the assignment of a 10 percent rating for service-connected tinnitus, to include on the basis of CUE in a September 1970 rating decision. A Board hearing by live videoconference was requested therein regarding these issues. This request is granted. Arrangements accordingly shall be made to schedule the Veteran and his representative for a videoconference hearing. Of note is that the RO schedules this type of hearing. III. Dizziness/Vertigo, Chronic Adjustment Disorder, and TDIU A NOD is a written communication from a Veteran or his representative expressing dissatisfaction or disagreement with a determination and a desire to contest the result. 38 U.S.C.A. § 7105(b)(2) (West 2002); 38 C.F.R. § 20.201 (2013); Anderson v. Principi, 18 Vet. App. 371 (2004); Acosta v. Principi, 18 Vet. App. 53 (2004); Gallegos v. Principi, 283 F.3d 1309 (2002). A NOD must be filed within one year from the date of mailing of notice of the determination. 38 U.S.C.A. § 7105(b)(1) (West 2002); 38 C.F.R. § 20.302(a) (2013). Upon the filing of a timely NOD, a SOC shall be prepared. 38 U.S.C.A. § 7105(d)(1) (West 2002); 38 C.F.R. § 19.29 (2013). The Board shall remand for issuance of a SOC if one has not been issued. Manlincon v. West, 12 Vet. App. 238 (1999). As set forth above, a September 2012 rating decision granted service connection and assigned an initial 30 percent rating effective December 30, 2010, for chronic adjustment disorder. This rating decision also denied service connection for dizziness/vertigo, to include as secondary to service-connected bilateral hearing loss and tinnitus. Notification of it was mailed to the Veteran and his representative in October 2012. In a statement entitlement "NOD with rating decision dated [in] September [] 2012" dated in October 2012 but received in November 2012, his representative challenged and conveyed a desire to contest the denial of service connection for dizziness/vertigo as well as the rating assigned and the effective date for chronic adjustment disorder. Similarly, a March 2013 rating decision denied a TDIU prior to February 3, 2012. Notification of it was mailed to the Veteran and his representative that same month. His representative challenged and conveyed a desire to contest this denial in a May 2013 statement entitled "NOD with rating decision dated [in] March [] 2013." The November 2012 and May 2013 statements were appropriately characterized as NODs by the Veteran's representative. The former is dated well before expiration of the one year period from the date of mailing of notice of the September 2012 rating decision in October 2012, while the latter is dated well before expiration of the same one year period with respect to the May 2013 rating decision and mailing of notice thereof. As such, each NOD is timely. No SOC has been prepared and associated with either the paper claims file or electronic claims file to date with respect to entitlement to service connection for dizziness/vertigo, to include as secondary to service-connected bilateral hearing loss and tinnitus, entitlement to an effective date earlier than December 30, 2010, for the grant of service connection and assignment of a 30 percent initial rating for chronic adjustment disorder, entitlement to an initial rating in excess of 30 percent for service-connected chronic adjustment disorder, or entitlement to a TDIU prior to February 3, 2012, however. It is required that this be done. Given the above, a REMAND is directed for the following (expedited handling is required because this matter has been advanced on the Board's docket): 1. Review the paper and electronic claims files and undertake any indicated development for records. This shall include, at a minimum, obtaining updated VA treatment records regarding the Veteran. Associate all records received with the paper or electronic claims file. 2. After completion of paragraph 1, issue a SOC regarding the Veteran's entitlement to service connection for dizziness/vertigo, to include as secondary to service-connected bilateral hearing loss and tinnitus, entitlement to an effective date earlier than December 30, 2010, for the grant of service connection and assignment of a 30 percent initial rating for chronic adjustment disorder, entitlement to an initial rating in excess of 30 percent for service-connected chronic adjustment disorder, and entitlement to a TDIU prior to February 3, 2012. Provide a copy of the SOC to the Veteran and his representative, and place a copy in the paper or electronic claims file. 3. Also after completion of paragraph 1, arrange for the Veteran to undergo an appropriate VA medical examination regarding cellulitis of the left lower extremity. The examiner shall be an infectious disease specialist, whether a physician or otherwise. Review of the paper and electronic claims file shall be undertaken by the examiner, with such documented in a report to be placed therein. The examiner also shall interview the Veteran regarding his relevant medical history and current symptoms, including a summarization in the report. All tests and assessments deemed necessary next shall be performed, with the results included in the report. The examiner thereafter shall render an opinion as to the following questions in the report: a) Are lay persons such as the Veteran and his wife L.K. competent to identify cellulitis? Consider that a lay person is competent only with respect to that which the lay person can personally experience (the Veteran) or observe in another (his wife L.K.). Lay persons thus generally are competent to identify simple conditions. Examples include flat feet, a dislocated shoulder, certain skin ailments, and varicose veins. b) Does the Veteran now have, or has he had at any point since March 2003 when he filed his claim, cellulitis of the left lower extremity as a disability? Consider the bouts of cellulitis he and his wife L.K. report during this period, if they are found competent to do so, as well as the diagnosis made after starting testosterone in a July 2010 VA treatment record. Also consider that a purely acute condition that fully resolves, even if recurring, does not qualify as a disability. An example is the common cold. Yet a condition that includes active and inactive stages, or flare ups and dormancy, does qualify as a disability. Certain skin ailments are examples. c) Now presume, regardless of the answer to the above question (since the Board ultimately may reach the opposite conclusion), that the Veteran has had cellulitis of the left lower extremity as a disability at least at some point since March 2003 when he filed his claim. Is it at least as likely as not (a 50 percent or greater probability) that this disability had its onset during his service or otherwise is related to his service? Consider that service treatment records reflect that he developed cellulitis of the left lower extremity after bowling and was hospitalized for it for approximately a month in January and February 1964. Also consider the contention of the Veteran and his wife that he has had problems with this extremity, to include bouts of cellulitis, ever since. Additionally consider that private treatment records show he had cellulitis of an unspecified foot in June and July 1990 after stepping on a nail and that VA treatment records document his report in October 2002 of two severe bouts of cellulitis to include of the left foot, one of which was in 1998, as well as an incident of cellulitis of the left lower extremity after starting testosterone in July 2010. The Veteran therefore contends that his in-service cellulitis of the left lower extremity made him susceptible to getting cellulitis there again following events like the aforementioned. He points out that he does not get cellulitis anywhere else. Finally consider the medical articles submitted by the Veteran and/or his representative as well as private Dr. C.B.'s March 2006 and September 2007 positive opinions. A clear and complete rationale (explanation of why and how the answer was reached) shall be provided in the report for each question. This includes a discussion of the pertinent medical principles, with a citation for and, if possible, the attachment of a copy of any literature referenced, as it relates to the pertinent evidence. If a question cannot be answered without resort to speculation, the rationale shall include a discussion of whether this is because more information is needed, information that cannot be obtained is needed, the limits of current medical knowledge have been exhausted, there are multiple possible etiologies with none more likely than not the cause, or some other reason. 4. Then readjudicate the Veteran's entitlement to service connection for cellulitis of the left lower extremity. If the determination is favorable to him, issue a rating decision. If the determination remains adverse to him, furnish him and his representative with a supplemental statement of the case (SSOC) and allow them time to respond. Place a copy of the rating decision or SSOC in the paper or Virtual VA electronic claims file. 5. Schedule a videoconference hearing regarding the Veteran's entitlement to an effective date earlier than December 30, 2010, for the assignment of a 40 percent rating for service-connected bilateral hearing loss and to an effective date earlier than September 29, 1996, for the assignment of a 10 percent rating for service-connected tinnitus, to include on the basis of CUE in a September 1970 rating decision (any of the issues mentioned in paragraph 2 for which there is a substantive appeal containing a hearing request also should be included). Notify the Veteran and his attorney of the date and time of the hearing in writing. Place a copy of the notification in the paper or electronic claims file. Also either place the hearing transcript in the paper or electronic claims file or document the paper or electronic claims file as necessary with respect to the Veteran and his attorney failing to appear for or canceling the hearing. 6. Finally, process this matter for return to the Board. Follow established procedure, to include generation of a certification form (VA Form 8) and notification of the Veteran and his attorney, in doing so. No action is required of the Veteran until he is notified by the RO. However, he is advised that he is obligated to cooperate with VA in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). His failure to report for any scheduled examination without good cause thus may result in an unfavorable determination. 38 C.F.R. § 3.655 (2013). The Veteran also is advised that he has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). It is reiterated that this matter must be afforded prompt treatment because it has been advanced on the docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2013). Further, the law requires that all matters remanded by the Board or the Court be handled expeditiously. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. The remand of this matter is in the nature of a preliminary order and does not constitute a decision of the Board. 38 U.S.C.A. § 7252 (West 2002), 38 C.F.R. § 20.1100(b) (2013).