Citation Nr: 20052904 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 18-23 154A DATE: August 10, 2020 ORDER Service connection for headaches is granted. Service connection for a left knee injury is denied. Service connection for a left calf injury is denied. Service connection for left leg shin splints is denied. Service connection for the residuals of the removal of the gallbladder, including scar, is granted. Service connection for right knee scar is granted. Service connection for a bilateral leg disability, to include numbness, cellulitis, circulation problems, and water retention is granted. REMANDED The issues of service connection for the residuals of hepatitis and mononucleosis are remanded for additional development. VETERAN’S CONTENTIONS The Veteran asserts that he initially began to experience headaches during hs deployment to South Korea in 1964. He additionally asserts that he has continued to experience headaches since the initial in-service incurrence. The Veteran contends that he was diagnosed, treated, and hospitalized for ten weeks for mononucleosis and hepatitis during his deployment to Camp Humphreys in South Korea between 1962 and 1963. The Veteran reported that this resulted in an enlarged spleen. The Veteran indicated that mononucleosis and hepatitis had not resolved by the time of his discharge in 1964. The Veteran stated that he was treated by an infectious disease doctor at VA but that his diseases were incurable. The Veteran further contends that he also began to experience cellulitis of the legs which he attributes to an in-service leg or knee injury that affected the circulation of his lower legs. He endorsed swelling and numbness of the legs as a result of the injuries. The Veteran stated that since the initial injury he has been treated for recurring cellulitis of both legs at VA. The Veteran clarified at his Board hearing that he did not have a current disability in the form of a left knee or left calf injury or left leg shin splints. At the July 2020 Board hearing, the Veteran testified that he seeks service connection for bilateral leg disability to include cellulitis, numbness and swelling. He clarified that the he does not have an orthopedic problem or any lingering problems with the left knee, calf, or shin splints apart from poor circulation and cellulitis. FINDINGS OF FACT 1. The Veteran’s headaches had their onset during active service. 2. At no time during, or prior to, the pendency of the claim did the Veteran have a current diagnosis of a left knee or left calf disability or of left leg shin splints. 3. The Veteran’s gallbladder removal scar is a residual of surgery performed in service. 4. The Veteran’s right knee scar was incurred in service. 5. The Veteran’s bilateral leg disability, to include numbness, cellulitis, circulation problems, and water retention was incurred in service. CONCLUSIONS OF LAW 1. The criteria for service connection for headaches are met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for service connection for a left calf disability are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The criteria for service connection for a left leg shin splints are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 5. The criteria for service connection for the residuals of gallbladder removal, including scar, are met. 38 U.S.C. §§ 101, 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304. 6. The criteria for service connection for a right knee scar are met. 38 U.S.C. §§ 101, 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304. 7. The criteria for service connection for a bilateral leg disability, to include numbness, cellulitis, circulation problems, and water retention, are met. 38 U.S.C. §§ 101, 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in active duty from June 1961 to May 1964 and from December 1972 to February 1973, with periods of reserve active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) until 2002. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a November 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for disability resulting from injury incurred in or aggravated while performing active duty for training (ACDUTRA) or inactive duty training (INACDUTRA) or a disease incurred or aggravated while performing active duty for training. 38 U.S.C. §§ 101(24), 106. To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d at 1376-77. In the absence of proof of a current disability, there is no valid claim of service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The United States Court of Appeals for Veterans Claims (Court) has held the requirement that a current disability be present is satisfied when a claimant has a disability at the time of a claim for VA disability compensation is filed or at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, functional impairment, may constitute a "disability" for VA compensation purposes, even if there is no accompanying diagnosis. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Headaches When a condition may be diagnosed by its unique and readily identifiable features, as is the case with headaches, the presence of the disorder is not a determination “medical in nature,” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007); Charles v. Principi, 16 Vet. App. 370 (2002). As headaches are identifiable by a layperson by their unique features, the remaining inquiry is whether the Veteran's current headaches are related to service. When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran's testimony and determine whether it supports a finding of service incurrence and continued symptoms since service. See Barr, 21 Vet. App. at 305. If it does, such testimony is sufficient to establish service connection. Id. The Veteran essentially testified during his July 2020 Board hearing that his current headaches began in service and that since then he continues to get severe headaches a few times a year, for which he takes over-the-counter Super Motrin. That contention is supported by his reports at other times during the course of this claim. Therefore, the Board finds his account of the in-service onset of his headaches and their continuation thereafter both competent and credible. As such, the Board finds that the Veteran’s statements are sufficient to establish service connection in this instance. Resolving all doubt in favor of the Veteran, service connection for headaches is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Left calf injury, left knee injury, and left leg shin splints In correspondence dated in March 2015, the Veteran did not endorse any disabilities of the left leg or knee apart from swelling, numbness, and cellulitis of the bilateral legs. In his November 2016 notice of disagreement, the Veteran reported that he never claimed a permanent calf or knee injury but that he suffered a knee injury in service which resulted in a permeant circulation problem and cellulitis of his legs. The Veteran also denied current bilateral shin splints. Although the Veteran endorsed knee pain at the July 2020 Board hearing, he attributed this pain to his circulation disorder and cellulitis of his bilateral legs. Service treatment records document treatment for poor circulation, pain and edema of the left leg and foot, left leg shin splints, and cellulitis of the right leg. Post-service treatment records document diagnosis and treatment of chronic cellulitis and knee arthralgia (pain). The Veteran was afforded a VA knee and lower leg and muscle injuries examinations in October 2015. The examiner noted that the Veteran had in-service treatment for a left knee effusion with compartment syndrome, left leg shin splints, and a left calf muscle spasm in June and July 1974 but a normal x-ray of the left knee in June 1964. The examiner determined that the Veteran did not have a current diagnosis of any disability of left knee or of the left calf. The Veteran denied any current knee problem or knee pain. The Veteran also reported that his muscle spasm of the left calf had long since resolved. Instead, the Veteran endorsed swelling of the left knee in service and recurrent cellulitis of the right leg. The VA examiner opined that the Veteran’s left knee and left calf injury in service were less likely than not related to service as the conditions had resolved without residuals. After review of the record, the Board finds that service connection for a left knee or calf injury and left leg shin splints is not warranted. The Board finds that the Veteran does not currently have an orthopedic disability of the left knee, a muscle disability of the left calf, or left leg shin splints. The Board acknowledges that service treatment records documented a diagnosis and treatment for various left leg conditions. However, the VA examiner determined that the Veteran did not currently have a current disability of the left knee or calf. The Board also notes the Veteran's competent and credible reports at the time of the examination that these injuries have resolved, and he currently only has a bilateral leg condition that includes cellulitis, water retention, and a circulation disorder, which is granted herein. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110, 1131. In the absence of evidence of a current disability for which service connection may be granted, there can be no grant of service connection under the law. See Brammer, 3 Vet. App. at 225. Service connection for a left calf injury, left knee injury, and left leg shin splints is denied. Gall bladder removal with scar and right knee scar Upon review of the evidence of record, the Board finds service connection for a right knee scar and gallbladder removal with scar is warranted. Service treatment records reflect that the Veteran underwent a cholecystectomy in 1975 at West Valley Hospital. May 1983, August 1983 and July 1984 in-service medical examinations for active duty training document a right knee scar and scar of the right upper quadrant due to the Veteran’s gallbladder removal surgery. The Board need not address whether gall bladder removal itself is an injury or disease, as the surgery is considered an external trauma, rather than a degenerative process, and therefore an injury. See VAOPGCPREC 04-2002; but see Nielson v. Shinseki, 23 Vet. App. 56, 61 (2009) (the extraction of teeth as a result of periodontal disease is not “service trauma” as contemplated by 38 U.S.C. § 1712(a)(1)(C)). Although the record is limited, particularly with regard to recent medical records, and a VA scar examination was not provided, the Veteran is competent to report a scar developing from his gallbladder surgery and injury to the right knee, as he implicitly did in filing his claim. Accordingly, service connection for a right knee scar and gallbladder removal scar is warranted. The Board notes that the Veteran listed “right knee 2 ½ inch scar” and “gallbladder removal with scar” in his claim. To the extent there is a residual from his surgery and injury beyond the scars, the Veteran has not alleged such a disability and the evidence of record does not indicate such a disability exists. Therefore, disability beyond a scar has not been raised by the Veteran or the record, and consequently has not been considered. Here, the decision of the AOJ to not obtain an examination prohibits a more detailed discussion of whether the scars are tender, painful, or otherwise resulting in disability. However, we shall not remand and shall accept, for the purpose of this decision, that the lay evidence establishes disability, no matter how slight. Bilateral leg disability, to include numbness, cellulitis, circulation problems, and water retention Service treatment records document complaints of and treatment for tenderness, pain, water retention, and poor circulation of the left leg as early as June 1974 while the Veteran was in training. He was placed on limited duty for 30 days. Service treatment records document in-service diagnoses and treatment for cellulitis of both legs as recently as 1992 and 2001. Post-service treatment records also document diagnoses and treatment for chronic cellulitis of the legs, including a prescription for Keflex four times per day. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Here, in light of the positive evidence of record, to specifically include the Veteran’s competent and credible lay statements describing cellulitis, numbness, tenderness, and poor circulation of both legs that began in service and continued thereafter and post-service treatment records documenting recurrent and chronic cellulitis and treatment for the aforementioned symptoms, the Board finds that the evidence is at least in equipoise regarding whether the Veteran’s current cellulitis was incurred in service. There is no evidence to the contrary. Hence, service connection for a bilateral leg disability, to include numbness, cellulitis, circulation problems, and water retention, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Residuals of hepatitis and mononucleosis The Veteran contends that he contracted hepatitis and mononucleosis from drinking tainted water during his deployment to South Korea, for which he was hospitalized. The Veteran states that since that time, he has body temperature fluctuations and hot flashes. Service treatment records contain an April 1981 report of medical history that documents a six-week hospitalization in 1963 for acute hepatitis with mononucleosis. The clinician determined there was no sequelae or complications of hepatitis or mononucleosis. Service treatment records also contain August 1996 lab results documenting negative results for hepatitis A and C antigens and antibodies, negative hepatitis B antigens, but positive hepatitis B antibodies, which was interpreted as immune status. Post-service treatment records are absent diagnoses or treatment of hepatitis or mononucleosis. The Veteran was afforded a VA infectious disease examination in October 2015. The examiner noted a 1963 diagnosis of mononucleosis and referenced a 10-week hospital stay in part due to spleen enlargement which is typical of the condition. The examiner also referenced a 2009 CT scan of the spleen which noted a normal spleen with no residuals. The examiner determined that the Veteran no longer has active mononucleosis and has no symptoms or residuals attributable to the disease. At an October 2015 VA hepatitis examination, the examiner determined that the Veteran was hospitalized with mononucleosis and hepatitis in service but no longer has hepatitis as the Veteran’s physical examination, 2009 blood liver enzyme testing, and 2009 CT liver imaging were all normal. The examiner opined that service connection was not warranted as the Veteran’s hepatitis and mononucleosis resolved without residuals. However, the examiner did not consider or address the Veteran’s contentions regarding body temperature fluctuations and hot flashes since his in-service treatment for mononucleosis and hepatitis and relied on evidence that is not associated with the claims file. As such, the opinion provided by the examiner is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). On remand, updated VA and private treatment records should also be requested. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if the material could be determinative of the claim). The matters are REMANDED for the following action: 1. Identify any outstanding records of pertinent medical treatment from VA or private health care providers, to include a copy of the 2009 CT scans of the Veteran’s liver and spleen and blood liver enzyme testing, as referenced in the October 2015 VA examinations. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. After completing the above actions and associating any additional records with the claims file, schedule the Veteran for a VA infection disease and hepatitis examinations to assess the nature and etiology of his mononucleosis and hepatitis. The Veteran’s claims file, including a copy of this remand, must be made available to the examiner. All diagnostic testing deemed to be necessary by the examiner should be accomplished. The examiner should address the following: (a.) With respect to the Veteran’s mononucleosis, is it at least as likely as not (50 percent probability or greater) that this disability arose during service or is otherwise related to any incident of service? Please explain why or why not. In providing this opinion, please comment on the significance, if any, of the Veteran’s contention that he continues to experience body temperature fluctuations and hot flashes since his in-service treatment for mononucleosis. Please note that a medical opinion that concludes that a disease is not related to service solely because there is absence of medical records is inadequate. (b.) With respect to the Veteran’s hepatitis, is it at least as likely as not (50 percent probability or greater) that this disability arose during service or is otherwise related to any incident of service? Please explain why or why not. In providing this opinion, please comment on the significance, if any, of the Veteran’s contention that that he continues to experience body temperature fluctuations and hot flashes since his in-service treatment for hepatitis. Please note that a medical opinion that concludes that a disease is not related to service solely because there is absence of medical records is inadequate. A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Bilstein, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.