Citation Nr: 21026656 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 12-03 821 DATE: May 3, 2021 ORDER Service connection for cellulitis of the left lower extremity is denied. Service connection for chronic venous insufficiency of the left lower extremity is denied. A total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran does not currently have cellulitis of the left lower extremity and has not had a left lower extremity cellulitis diagnosis during the claim period on appeal. 2. The Veteran has a present diagnosis of chronic venous insufficiency of the left lower extremity. 3. There was no in-service injury, disease, or event related to chronic venous insufficiency of the left lower extremity. 4. The Veteran did not complete and return a Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940) in connection with the TDIU appeal, which was mailed to him on April 28, 2016. 5. There is incomplete information of record regarding the Veteran's educational background and work history. 6. The evidence of record is insufficient to determine whether the Veteran has been substantially gainfully employed during the TDIU period and whether there has been a material change in employment during the course of the appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for cellulitis of the left lower extremity have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for chronic venous insufficiency of the left lower extremity have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The issue of entitlement to a TDIU is abandoned, leaving no question of law or fact to decide regarding the TDIU issue. 38 U.S.C. §§ 501, 1155, 7104; 38 C.F.R. § 3.158. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active duty service from January 1978 to August 1982. The instant case is on appeal from Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. The case has been before the Board of Veterans' Appeals (Board) previously. Most recently, in September 2019, the Board remanded for a nexus opinion for the left lower extremity cellulitis and chronic venous insufficiency. The nexus opinion has been obtained, so the Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the issues on appeal were previously characterized as one issuecellulitis and chronic venous insufficiency of the left lower extremity. The Board has separated them because they are distinct disorders. The Veteran testified at a Board hearing in August 2014. The hearing transcript has been associated with the claims file. Service Connection Legal Authority Direct Service Connection Service connection can be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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 generally requires (1) competent evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. With any claim for service connection (under any theory of entitlement, including secondary), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). 1. Service Connection for Cellulitis of the Left Lower Extremity The Veteran requests service connection for cellulitis of the left lower extremity. See October 2008 Statement in Support of Claim. At a Board hearing in August 2014, the Veteran asserted generally that medical issues with his left lower extremity were due to his right lower extremity. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against a finding of a current disability of cellulitis of the left lower extremity. Cellulitis is "a spreading bacterial infection underneath the skin surface characterized by redness, warmth, swelling, and pain. Cellulitis commonly appears in areas where there is a break in the skin." See Medical Definition of Cellulitis, available at https://www.medicinenet.com/cellulitis/definition.htm (last accessed April 28, 2021). Unlike the service-connected right lower extremity, which had repeated (chronic) episodes of cellulitis during service, in this case, the left lower extremity has only had one episode of cellulitis, which was after service and occurred two months before the claim for service connection, was treated, and resolved. See August 2008 VA Treatment Record (discharge summary). The left lower extremity cellulitis has not recurred or been present at any time during the claims period. See November 2020 VA Opinion (stating that there is no evidence to support a diagnosis of cellulitis of the left lower extremity and that the Veteran admitted that he had not received treatment for it for the past 10 years). The instant case is distinguished from Romanowsky, 26 Vet. App. at 294, which involved a psychiatric disability that had been diagnosed immediately prior to the claim for service connection. Psychiatric disabilities are considered to be always present, even if they are in remission. The cellulitis does not share that characteristicit is an infection that is capable of treatment (an infection below the skin) and resolves with treatment. A single episode of cellulitis that is treated and resolves lacks the chronic symptoms or chronic impairment to be a disability for VA compensation purposes. Under the facts of this case, the Veteran received treatment and the left lower extremity cellulitis resolved. This decision was made not only on the date of diagnosis and medical evidence showing the left lower extremity cellulitis was treated and resolved, but also considered the Veteran's lay descriptions of the cellulitis, including past history and nonoccurrence during the claim period. For these reasons, the weight of the lay and medical evidence is against a finding of a present disability. Accordingly, the claim for service connection for cellulitis of the left lower extremity must be denied under any theory of service connection. 2. Service Connection for Chronic Venous Insufficiency of the Left Lower Extremity The Veteran also seeks service connection for chronic venous insufficiency of the left lower extremity. See October 2008 Statement in Support of Claim. A November 2020 VA Examination diagnosed chronic venous insufficiency of the left lower extremity, so the present disability requirement has been met. See November 2020 VA Examination. At a few points, the Veteran appears to assert that the chronic venous insufficiency of the left leg is secondary to the service-connected right leg disabilities. See October 2008 Statement in Support of Claim (filing a new claim for chronic venous insufficiency of the left leg as secondary to the service-connected right leg); August 2014 Hearing Transcript (saying that left leg problems started around 1999, but that the right leg problems caused the difficulty with the left leg). After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against a grant of service connection for chronic venous insufficiency of the left lower extremity. The weight of the evidence shows was no relevant in-service injury, disease, or event related to chronic venous insufficiency of the left lower extremity. The Board finds that the weight of the evidence is against any relevant in-service injury, disease, or event related to chronic venous insufficiency of the left lower extremity. The service treatment records are complete and do not document complaints, symptoms, or findings of a vascular problem of the left lower extremity. The records do document significant treatment during service for other disorders, but not for peripheral vascular symptoms. The Veteran was seen repeatedly for right lower extremity cellulitis, as explained above, and was subject to a Coast Guard Physical Evaluation Board proceeding for that issue. Other injuries and disorders included possible tarsal tunnel right foot, right foot pain and swelling, swollen right ankle (including inpatient examination for ankle issues and frequent examination/treatment), right ankle edema, lymphedema, tinea pedis, left shoulder injury, a urinary tract infection, back muscle spasms, left ankle sprain, upper respiratory infections, achiness, gastroenteritis, and a rash. In an October 1981 Report of Medical Examination, the examining medical professional found that the Veteran had tinea pedis bilaterally between digits of feet, tinea versicolor over the upper back, and stated that the Veteran was qualified for separation. There was no mention of a vascular disease. Vascular diseases are such that they would have been recorded if reported. Accordingly, the evidence shows no in-service vascular injury or disease during service. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803(7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact that would ordinarily be recorded). The Board recognizes that the Veteran has provided a brief statement from a VA treating physician that the Veteran has a longstanding history of phlebitis and that the disease affects both legs and is not limited to one. See August 2009 Statement by Dr. F. The statement factually assumes that issues with both legs started in service. The Board finds that this vague assertion is an inaccurate factual assumption, as it is against the weight of the evidence, which shows no vascular injury, disease, or event (including symptoms) during service. The vague opinion does not provide a basis for the opinion and, in addition to relying on an unsupported and inaccurate factual assumption that symptoms were present during service, is also simply an assertion without any supporting evidence or rationale. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (whether a physician provides a basis for their medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits); Miller v. West, 11 Vet. App. 345, 348 (1998) (a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record). Accordingly, the Board finds that this purported opinion by Dr. F is of no probative value. For these reasons, the weight of the evidence is against a direct service connection grant. With regard to the secondary service connection contentions, given that the right leg is at an anatomically remote area from the left leg, the Board finds that the Veteran has only asserted a speculative relationship that is without basis in logic, medical principles, or evidence. The Veteran has not proferred any contention as to how an anatomically remote right leg disability might have acted on the left leg to either cause or worsen chronic venous insufficiency of the left leg. Not even the very low threshold to trigger the duty to assist with respect to chronic venous insufficiency is met in this case to warrant a medical opinion on this speculative assertion of relationship between right leg disabilities and left leg chronic venous insufficiency. The duty to assist requires a medical opinion "if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but...[i]ndicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability." See 38 C.F.R. § 3.159(b)(4)(i)(C) (emphasis added). "Paragraph (4)(i)(C) could be satisfied by competent evidence showing post-service treatment for a condition or other possible association with military service." See 38 C.F.R. § 3.159(b)(4)(ii). This is a very low threshold and does not require medical evidenceonly competent evidencebut even a lay assertion as in this case must assert the association or how such association "may" happen. In this case, the contentions and evidence of record, even liberally construed, do not facially assert how a service-connected right leg disorder might cause or aggravate the chronic venous insufficiency of the lower left extremity. Accordingly, a nexus opinion is not warranted. As the weight of the evidence shows no relevant in-service injury, disease, or event to which the current chronic venous insufficiency of the left lower extremity could be related, and neither the Veteran nor the evidence has not raised an actual theory of secondary service connection, the appeal for service connection for chronic venous insufficiency of the left lower extremity must be denied. 3. Abandonment of TDIU Claim VA will grant TDIU benefits when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from securing or following a substantially gainful employment consistent with a veteran's education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran asserted at the August 2014 Board hearing that he lost prior employment with the United States Postal Service because of the service-connected disability. He discussed starting a part-time position with another agency, but still having some health-related challenges. In the November 2014 Board remand that followed the hearing, the Board stated that the issue of entitlement to TDIU had been raised, remanded the issue, and directed the RO to provide the VA Form 21-8940 (TDIU claim form). The RO provided the form to the Veteran in an April 28, 2016 letter. To date, the Veteran has not completed and returned the form or otherwise supplied the requested information needed to decide a TDIU claim on the merits. When evidence requested in connection with a claim for increase is not furnished within one year after the date of request, the claim will be considered abandoned. 38 U.S.C. § 501; C.F.R. § 3.158(a). A TDIU claim is a form of increased rating claim. See Hurd v. West, 13 Vet. App. 449 (2000) (recognizing that a TDIU claim was a form of increased rating claim by applying increased rating effective date regulatory provisions to a TDIU claim); Norris v. West, 12 Vet. App. 413 (1999) (recognizing that a claim for a TDIU is in essence a claim for an increased rating). After the expiration of one year, further action will not be taken unless a new claim is received. 38 C.F.R. § 3.158(a). (Continued on the next page) Because the evidence of record is insufficient to decide the TDIU appeal and the Veteran did not respond to the April 2016 correspondence from the RO asking him to complete and submit a VA Form 21-8940 in connection with the appeal, and the information requested is necessary to determine the Veteran's employment status, the claim for a TDIU was abandoned and must be denied as a matter of law. 38 U.S.C. § 7104; 38 C.F.R. § 3.158. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.