Citation Nr: 1337409 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 07-16 057 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to service connection for disability of the right lower extremity involving lymphedema and cellulitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran had active military service from November 1981 to October 1984. This appeal to the Board of Veterans' Appeals (Board) arose from December 2003 and April 2006 rating decisions in which the RO denied service connection for swelling of the right leg and cellulitis. In July 2006, the Veteran filed a notice of disagreement (NOD). In April 2007, the RO issued a statement of the case (SOC), and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in May 2007. In July 2010, the Board determined that the December 2003 rating decision, which initially denied service connection for swelling of the right leg, was not final and, thus, the issue had continuously been on appeal since the Veteran filed her initial claim in May 2003. The Board then remanded the Veteran's claim to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After completing the requested development, the RO/AMC continued to deny the claim (as reflected in an August 2011 supplemental SOC (SSOC)) and returned the matter on appeal to the Board for further consideration. In December 2011, the Board again remanded the Veteran's claim to the RO, via the AMC, for further action, to include additional development of the evidence. After completing the requested development, the RO/AMC again continued to deny the claim (as reflected in an August 2012 SSOC) and returned the matter on appeal to the Board for further consideration. In November 2012, the Board again remanded the claim to afford the Veteran the opportunity to testify during a Board hearing. In July 2013, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of the hearing is of record. In the Board's prior remands, the issues on appeal were characterized as service connection for swelling associated with the right lower extremity and for cellulitis of the right lower extremity. However, as discussed at the Board hearing, it is essentially the same disability of the right lower extremity, as cellulitis becomes present under certain conditions associated with the leg swelling. As such, the Board has characterized the appeal as encompassing the issue as set forth on the title page of this decision. In August 2012, March 2013 and July 2013, the Veteran submitted additional medical evidence directly to the Board. In an October 2012 brief, the Veteran's representative waived initial RO consideration of the additional evidence received since August 2012. Moreover, a waiver was submitted along with the evidence submitted in July 2013. However, it does not appear that a waiver was submitted with the March 2013 evidence. Nevertheless, in an August 2012 statement, the Veteran waived RO consideration of all future evidence submitted. As such, all of this evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2013). As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) folder associated with the appellant's claims. A review of the documents in such folder reveals that with the exception of the Board hearing transcript and additional VA treatment records dated to March 2012, they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. Probative lay and medical evidence of record indicates that it is at least as likely as not that the Veteran's disability of the right lower extremity involving lymphedema and cellulitis manifested in service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for disability of the right lower extremity involving lymphedema and cellulitis are met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Given the favorable disposition of the claim for service connection for disability of the right lower extremity involving lymphedema and cellulitis, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished. II. Analysis The Veteran is seeking service connection for disability of the right lower extremity involving lymphedema and cellulitis. She avers that her right leg began swelling in service and has continued since that time. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served 90 days or more during a period of war or after December 31, 1946, and certain disabilities become manifest to a degree of l0 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1113; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Although the Veteran's right leg disability is not a chronic disease, listed in section 3.309(a), that is subject to service connection based upon a showing of continuity of symptomatology (see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)), as explained below, lay assertions as to the existence, and continuity of symptoms, of a right leg disability, is considered competent evidence of such. In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Considering the pertinent evidence in light of the governing legal authority, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for disability of the right lower extremity involving lymphedema and cellulitis is warranted. In her initial claim submitted in May 2003, subsequent various statements of record and at the Board hearing, the Veteran has consistently reported that while stationed in Germany in 1982 to 1983, she experienced right leg swelling. She has reported that treatment included a physical profile to allow her to wear athletic shoes instead of boots and casting of the right lower extremity for more than a week. In addition, the Veteran has asserted that her lower extremity swelling makes her more susceptible to periodic bouts of right lower extremity cellulitis. Although the Veteran has indicated that she did not seek treatment after her discharge from service until approximately 1997 due to problems with drug abuse during this period, she has asserted continuity of symptomatology since service. Despite numerous attempts to obtain such records, with the exception of service treatment records concerning hospitalization and treatment for pelvic inflammatory disease from October 1982 to November 1982 at Fort Campbell, Kentucky, the Veteran's service treatment and personnel records are not available for review. Post-service VA treatment records beginning in November 1996 document a history of right lower extremity edema since active duty service, which the Veteran thought may be related to a boot injury. Further, private treatment records from the Hinsdale Hospital showed that the Veteran was hospitalized in July 2005 for acute cellulitis of the right lower extremity superimposed to chronic lymphedema. A clinical record noted a history of "chronic lymphedema at least for the last 22 years since foot injury occurred when doing her military service in Germany." A September 2005 letter from a Nurse Practitioner at the North Chicago VA Medical Center (VAMC) also indicated that the Veteran had a lifelong disability with chronic right lower extremity lymph edema. The author noted that "[s]he developed this during her service duty in the United States Army from 1979-1984." The nurse practitioner also noted that the lymphedema rendered the Veteran prone to cellulitis, for which she had been hospitalized in June 2004. In support of her claim, the Veteran has submitted numerous lay statements dated in November 2011 from friends and family, which indicate that the Veteran had no problems with her right lower extremity prior to active service. However, after discharge, it was reported that the Veteran complained of pain and difficulty walking; and leg swelling was observed by the lay witnesses. The claims file also includes a May 2012 private opinion from an examiner with Lymphatic Therapy Services, Inc. The examiner observed that the Veteran reported right leg swelling since 1982 that progressively worsened while in service, and has continued. It was also observed that the Veteran had at least three bouts of cellulitis for which she had been hospitalized. The Veteran reported having to wear "blousers" while in the military, which were essentially elastic bands put just below the knee in order for the pants "blouse" over the band as part of the military dress. The examiner observed that lymphedema was a chronic condition that frequently resulted from some sort of trauma of the lymphatic vessels that permanently damaged or destroyed them. The examiner indicated that the repetitive use of "blousers" in the same area of the leg could create this type of trauma. The examiner continued that the majority of the Veteran's swelling was below the area where the "blouse" was used, which was consistent with the path of lymphatic drainage of the lower extremity. All of the lymphatic drainage from the lower body drains to the lymph nodes in the groin, so any fluid below the traumatized area would build up below the traumatized area, which also created a risk for infection. In July 2012, an independent medical opinion was obtained by the VA. After reviewing the claims file and summarizing the pertinent evidence of record, the examiner stated that since the service treatment records were not complete, specifically lacking induction and separation examinations, he was unable to establish the onset of the Veteran's right lower extremity swelling and cellulitis or opine whether these disabilities were at least as likely as not due to or caused by service, excluding blousing of the boots, without resorting to mere speculation. The examiner, however, did determine, that blousing, did not cause the Veteran's right lower extremity swelling because it would not damage the lymphatics. A person would have to apply a tourniquet to the leg, tight enough to constrict venous and lymphatic circulation, but loose enough to allow arterial flow for damage to occur. The Veteran would not have tolerated such a form of "blousing." The examiner also noted that lymphedema could be primary or secondary. Primary implied a genetic defect that could present in different timeframes, either shortly after birth, puberty or after 35 years of age. Secondary lymphedema required a precipitating cause following minor trauma or inflammatory process. However, there was insufficient information to determine whether the Veteran had primary or secondary lymphedema and to identify the secondary lymphedema precipitating event, if there was one. The claims file also includes another opinion dated in March 2013 from the same nurse practitioner at the Chicago VAMC who prepared the September 2005 opinion, as well as another VA medical doctor. The examiners determined that based on review of service medical records as well as post service treatment records, it was their opinion that there was a highly probable relationship between the Veteran's lymph edema, and the previously documented pelvic inflammatory disease, which more likely than not damaged her lymphatic drainage, along with chronic persistent weight of back pack up to 75 pounds being carried by the soldier in improperly fitted and constructed boots over extended period of times while on active duty. Additional medical statements dated in May 2006 and June 2013 from the Veteran's private physician, D.S., M.D., discuss the severity of the Veteran's medical conditions, but do not provide any sort of etiological opinion for her right lower extremity disability. Initially, regarding the Veteran's assertions that she experienced right leg symptoms in service that have continued to the present, the Board notes that the Veteran, as a layperson, is competent to report on matters observed or within his personal knowledge. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). See also Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Veteran is also competent to report about observable symptoms or injury residuals. However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469 (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")). In this case, the Veteran has consistently provided competent and credible evidence that she has had continuous symptoms of right leg swelling since her discharge from active duty service, and the Board finds no reason to question the veracity of such statements. See Charles, 16 Vet. App. 370; Hayes, 5 Vet. App. at 69-70. In this regard, the Veteran has submitted numerous lay statements from friends and family that observed the Veteran's right leg swelling after service, which support the Veteran's assertions. Moreover, the Board finds it significant that the Veteran first reported ongoing symptoms when she sought treatment in 1996 at the VAMC, which was many years prior to her filing a claim for benefits. In other words, her statements when seeking medical treatment at that time were not for the purposes of seeking a monetary reward and appeared to simply have been made during the course of receiving treatment as opposed to in association with a compensation claim. Thus, the Board finds the Veteran's assertions of in-service symptomatology and continuing symptoms to be credible. As such, in the instant case, we have credible lay evidence of an in-service incident or injury. Moreover, current treatment records document a current diagnosis of disability of the right lower extremity including lymphedema and cellulitis. Thus, the Board must determine whether there is competent evidence linking the Veteran's current disability to service. In this regard, the Board observes that there are two conflicting medical opinions as to whether the Veteran's disability is related to "blousing" while in service. The May 2012 private opinion indicated that "blousing" could cause the type of trauma that would lead to lymphedema. However, the July 2012 independent medical opinion determined that "blousing" did not cause the Veteran's lymphedema and provided a detailed rationale for such opinion. Nevertheless, this opinion found that it could not determine whether the Veteran's lymphedema was otherwise related to service without resorting to mere speculation. The Board cannot rely on an examiner's conclusion that an opinion would be speculative unless there is an explanation for such opinion. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). In this case, the examiner did not provide any such explanation. As such, it has minimal probative value with respect to any other possible in-service cause for the Veteran's current right lower extremity disability. Nevertheless, the claims file also includes a March 2013 opinion from the Veteran's treating nurse practitioner and medical doctor at the Chicago VAMC. This opinion determined that the Veteran's current disability was related to service. Specifically, after reviewing the service treatment records available and considering the Veteran's post service treatment and history, the examiners concluded that the pelvic inflammatory disease documented in the Veteran's service treatment records and the requirement to carry a 75 pound back pack while wearing improperly fitted boots caused the Veteran's current disability. The remaining medical opinions of record did not address these two of incidents of causality. As such, in light of this medical opinion as well as the Veteran's competent and credible lay statements, the Board finds that when resolving the benefit of the doubt in favor of the Veteran, there is probative evidence that the Veteran's current disability manifested in service. In sum, the evidence of record includes credible lay evidence documenting in-service symptoms, current medical evidence showing a current disability, and competent medical and credible lay evidence tending to show a link between the Veteran's current disability and service. See 38 C.F.R. § 3.303(b); Walker (cited above). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102; see also 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 53-56. Therefore, given the totality of the evidence-to include credible lay assertions as to injury, as well as onset, and continuity of symptoms, and supporting opinion evidence-and resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for disability of the right lower extremity involving lymphedema and cellulitis are met. ORDER Service connection for disability of the right lower extremity involving lymphedema and cellulitis is granted. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs