BVA9503390 DOCKET NO. 93-06 220 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to restoration of service connection for cellulitis, right lower extremity. 2. Entitlement to an increased (compensable) disability rating for cellulitis, right lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Keyes, Associate Counsel INTRODUCTION The veteran served on active duty from October 1966 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) from a December 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied the veteran's claim for an increased (compensable) disability rating for his service-connected cellulitis, right lower extremity, and severed service connection for cellulitis, right lower extremity on the basis that there was clear and unmistakable error in a March 1987 RO decision which granted service connection for cellulitis, right lower extremity. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO committed error in denying his claim for an increased (compensable) disability rating for his service-connected cellulitis, right lower extremity, and in severing service connection for that disorder. Specifically, he contends that the RO erred in stating that his current cellulitis is caused by varicose veins and that the cellulitis he had in service was acute and transitory in nature. He states that there is medical evidence in his claims file to show that the cellulitis he had in service is recurring cellulitis and that it has caused circulation problems in both legs. He also contends that his service-connected cellulitis is severe and has required regular treatment at a Department of Veterans Affairs Medical Center (VAMC) and that his condition has interfered with his employment, and he requests consideration under 38 C.F.R.§ 3.324 (1994) if a compensable rating cannot be granted under the VA Schedule for Rating Disabilities, 38 C.F.R., Part 4 (1994). With regard to the veteran's contentions that his service-connected cellulitis has caused circulation problems in both his legs, the Board notes that the RO denied service connection for varicose veins with stasis dermatitis on both a direct basis and a secondary basis (as caused by the veteran's service-connected cellulitis) in March 1989. The veteran did not appeal this decision. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is in favor of restoration of service connection for cellulitis, right lower extremity. FINDINGS OF FACT 1. The veteran was treated in service in September 1967 for cellulitis of the left foot and lymphadenitis of the left groin. 2. The veteran was treated in service in July 1969 for cellulitis of the right leg. Physical examination at that time revealed a 12 by 15 centimeter area of erythema edema in the right pretibial area and slightly tender right inguinal nodes. 3. The earliest post-service medical evidence of cellulitis is dated July 1985. In a November 1986 medical report, a private physician noted a history provided by the veteran of about one episode a year since 1969 of recurrent cellulitis of the lower extremities. The doctor's assessment was recurrent stasis edema, lower legs and feet, with superimposed cellulitis, chronic and existing at least since 1969. 4. Upon VA examination in January 1987, the examiner's impression was peripheral venous insufficiency of the superficial saphenous system bilaterally with stasis dermatitis and intermittent cellulitis of the lower extremities. 5. In March 1987, the RO, noting only the treatment in 1969 for cellulitis of the right leg in the veteran's service medical records and not the 1967 treatment for cellulitis of the left foot, granted service connection for intermittent cellulitis of the right lower extremity and denied service connection for cellulitis of the left lower extremity. The RO assigned a noncompensable disability evaluation for the service-connected intermittent cellulitis of the right lower extremity. 6. The veteran appealed the RO's assignment of a noncompensable evaluation for his service-connected disability, and in February 1989, the Board denied the veteran's claim for an increased (compensable) disability rating. 7. In May 1991, the RO informed the veteran that it proposed to sever service-connection for cellulitis of the right lower extremity. In a March 1991 rating action, the RO had determined that its March 1987 contained clear and unmistakable error in granting service connection for "intermittent" cellulitis, right lower extremity, because the episode of cellulitis of the right leg in service was acute and transitory. In December 1987, the RO severed service connection for cellulitis, right lower extremity, and notified the veteran of this decision in February 1992. CONCLUSION OF LAW 1. Service connection for cellulitis, right lower extremity, is restored. 38 U.S.C.A. §§ 1110, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.105(d), (h), 3.303 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The service medical records reflect that in September 1967 the veteran had swelling in his left foot and complained of constant and steady pain. Possible cellulitis was noted. The veteran's foot was treated with hot water soaks, and methyl salicylate with an ace bandage was applied to the left foot. After four days, the veteran's left foot had gotten progressively worse. He complained of pain and swelling and reported no trauma to the foot. An examiner noted that the left foot was swollen with erythema on the dorsal aspect and that pulses were +4 or normal. The doctor's impression was cellulitis of the left foot. The doctor noted "no lymphangitis [and] no thrombophlebitis." The veteran was admitted to a hospital ward where he was treated with antibiotics, pain relievers, elevation and hot soaks of the foot, and bedrest. A consultation sheet signed by another doctor showed complaints and findings as "cellulitis left foot and lymphadenitis left groin." The veteran improved with treatment and was discharged from the ward after six days. Upon a checkup about a week later, there was no recurrence of infection and no further treatment indicated. In July 1969, the veteran was admitted to the hospital for nine days for treatment of cellulitis of the right leg. Physical examination at that time revealed a 12 by 15 centimeter area of erythema edema in the right pretibial area and slightly tender right inguinal nodes. A clinical record cover sheet reflects a diagnosis of cellulitis, right leg, due to unknown organism, no history of trauma. The veteran was treated with bed rest, elevation of the extremity, warm, moist soaks, and antibiotics, and he responded well with progressive improvement and was well healed at the time of discharge. He was discharged with an "L-3" profile for two weeks which meant that he was to do no marching; no calisthenics; no guard duty; no crawling, stooping, running, jumping, or prolonged standing or marching; and no strenuous physical activity. The earliest post-service medical evidence of treatment for cellulitis is dated July 1985. The veteran submitted a claim for service connection for cellulitis of the legs in September 1986. In a November 1986 medical report, a private physician noted a history provided by the veteran of about one episode a year since 1969 of recurrent cellulitis of the lower extremities. The doctor's assessment was recurrent stasis edema, lower legs and feet, with superimposed cellulitis, chronic and existing at least since 1969. Upon VA examination in January 1987, the examiner's impression was peripheral venous insufficiency of the superficial saphenous system bilaterally with stasis dermatitis and intermittent cellulitis of the lower extremities. In March 1987, the RO, noting only the treatment in 1969 for cellulitis of the right leg in the veteran's service medical records and not the 1967 treatment for cellulitis of the left foot, granted service connection for intermittent cellulitis of the right lower extremity and denied service connection for intermittent cellulitis of the left lower extremity. The RO assigned a noncompensable disability rating for the service-connected cellulitis of the right lower extremity. In May 1991, the RO informed the veteran that it proposed to sever service connection for cellulitis of the right lower extremity. In a March 1991 rating action, the RO had determined that its March 1987 rating decision contained clear and unmistakable error because it granted service connection for "intermittent" cellulitis, right lower extremity, when the episode of cellulitis of the right leg in service was actually an acute and transitory episode of cellulitis. In December 1991, the RO severed service connection for cellulitis, right lower extremity, and notified the veteran of this decision in February 1992. The VA regulation pertinent to severance of service connection provides, "When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained." 38 C.F.R. 3.105(d) (1994). In this case, the rating decision of March 1991 set forth all material facts and reasons for severance of service connection. The appellant was notified of the decision in May 1991. He was given an opportunity to present additional evidence at a personal hearing. The veteran was notified in February 1992 of the December 1991 rating decision which severed service connection. Therefore, the Board finds that the RO met the procedural requirements of 38 C.F.R. § 3.105(d). See Graves v. Brown, 6 Vet.App. 166, 170 (1994); see also Baughman v. Derwinski, 1 Vet.App. 563, 566 (1991). Section 3.105(d) also provides that "service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being upon the [g]overnment)." 38 C.F.R. § 3.105(d) (1994). The United States Court of Veterans Appeals has held that, "[i]n effect, [section] 3.105(d) places at least as high a burden of proof on the VA when it seeks to sever service connection as [section] 3.105(a) places upon an appellant seeking to have an unfavorable previous determination overturned." Baughman, 1 Vet.App. at 566; see also Graves, 6 Vet.App. at 170. In Graves, the Court observed that "VA must meet the burden of proof and demonstrate that the granting of service connection was clear and unmistakable error; failure to do so is error as a matter of law." Graves, 6 Vet.App. at 170. In addition, the Court held in Graves that clear and unmistakable error "is defined the same under 38 C.F.R. § 3.105(d) as it is under 38 C.F.R. § 3.105(a)." Graves, 6 Vet.App. at 170. The Court then described the high burden of proof required for a showing of clear and unmistakable error by reiterating the definition it has provided for clear and unmistakable error in relevant case law: In order for there to be "clear and unmistakable error" under 38 C.F.R. § 3.105(d), there must have been an error in the prior adjudication of the claim. See Russell v. Principi, 3 Vet.App. 310, 313 (1992) (en banc). Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Id. at 313. With regard to challenges to prior decisions by a claimant under 38 C.F.R. § 3.105(a), the Court held in Russell that a "clear and unmistakable error" must be the sort of error which, had it not been made, would have manifestly changed the outcome at the time it was made. Id. "It must always be remembered that [clear and unmistakable error] is a very specific and rare kind of 'error.' It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error." Fugo v. Brown, 6 Vet.App. 40, 43 (1993). Errors that are "clear and unmistakable" are undebatable; that is, reasonable minds could only conclude that the original decision was fatally flawed at the time it was made. Id. A determination that there was a "clear and unmistakable error" must be based on the record and the law that existed at the time of the prior decision of the agency of original jurisdiction or BVA, and subsequently developed evidence is not applicable. Porter v. Brown, 5 Vet.App. 233, 235-36 (1993). Graves, 6 Vet.App. at 170-71; but see Smith v. Brown, 35 F.3d 1516 (Fed. Cir. 1994) (clear and unmistakable error applies only to decisions of the agency of original jurisdiction and not to Board decisions). Thus, in considering the issue which confronts the Board on appeal in this case, i.e., whether there was clear and unmistakable error in the March 1987 rating decision granting service connection for cellulitis, right lower leg, the Board will consider only the evidence that was in the claims file at the time of the March 1987 RO decision. For service connection to be granted the law requires that there be a current disability and that the disability result from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1994); see Cuevas v. Principi, 3 Vet.App. 542, 548 (1992) (establishing service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992) (there must be evidence both of a service-connected disease or injury and a present disability which is attributable to such disease or injury). The Board notes that there was evidence in the claims file at the time of the March 1987 rating decision showing two episodes of cellulitis during service and treatment for cellulitis in 1985 and 1986. With regard to evidence of a relationship between the episodes of cellulitis in service and the 1985 and 1986 episodes, there is a report from a Dr. Henry W. Rittenburg who, based on a history provided by the veteran, diagnosed recurrent stasis edema, lower legs and feet, with superimposed cellulitis, chronic and existing at least since 1969, and a January 1987 report of a VA examiner who, also based on a history provided by the veteran, diagnosed peripheral venous insufficiency of the superficial saphenous system bilaterally with stasis dermatitis lower extremities and intermittent cellulitis lower extremities. The Board observes that the evidence showing treatment for current cellulitis and for cellulitis in service is not in question in this case. The December 1991 RO severed service connection because it found that there was clear and unmistakable error in the March 1987 decision with regard to the finding of a relationship between the cellulitis in service and the current cellulitis. Specifically, the December 1991 RO found that the cellulitis in service was "acute and transitory" and not "intermittent" as the current cellulitis was described by the January 1987 VA examiner and that therefore the cellulitis in service was not related to the current disorder, i.e., "intermittent" cellulitis. Whether a current disability is related to a disability treated in service is a medical question requiring medical evidence for its resolution. See Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). The Board recognizes that in this case the RO based its decision to severe service connection, at least in part, on the February 1989 decision of the Board denying an increased rating for the service-connected cellulitis. In that decision, the Board stated that "[t]reatment for primary cellulitis of the right lower extremity for which service connection has been established is not shown by the evidence [as existing currently]," and the Board found as fact that "any current cellulitis of the right lower extremity is not primary in nature [but] a manifestation of varicose veins with stasis dermatitis." (Italics added.) In severing service connection, the RO reasoned that both the 1967 and 1969 bouts of cellulitis in service were "primary" and "acute and transitory" in nature, rather than being episodes of "intermittent," recurring, or chronic cellulitis. In addition, the RO found that the current cellulitis was secondary to a vascular insufficiency and, since the veteran was not service-connected for a vascular insufficiency, the RO reasoned that service connection for cellulitis could not be justified on a secondary basis. Since the Board rendered its decision in February 1989, the Court has issued many decisions in which it has held that the Board "may consider only independent medical evidence to support [its] findings" and must not rely on its own unsubstantiated medical opinion to refute medical evidence. Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991); see also Doran v. Brown, 6 Vet.App. 283, 287 (1994); Cosman v. Principi, 3 Vet.App. 503, 506 (1992); Hatlestad v. Derwinski, 3 Vet.App. 213, 217 (1992); Budnick v. Derwinski, 3 Vet.App. 185, 187 (1992); Quarles v. Derwinski, 3 Vet.App. 129, 139 (1992); Tobin v. Derwinski, 2 Vet.App. 34, 38- 39 (1991). In this regard, the Board notes that there is no medical evidence in the claims file which distinguishes between "primary" or "acute and transitory" cellulitis and "intermittent" or "recurrent" or "chronic" cellulitis and shows that the type of cellulitis that the veteran had in service was the former. In addition, the Board observes that, although it is true that following treatment in service the veteran recovered from the bouts of cellulitis, it appears from medical reports in the claims file and from the meaning of the words themselves that the nature of "intermittent" or "recurrent" cellulitis is such that a person suffering from it experiences its manifestations or symptoms episodically rather than continually. In short, "intermittent" cellulitis comes and goes. In addition to a lack of evidence showing that the cellulitis in service was "acute and transitory," there was evidence before the RO in March 1987 which showed that the bouts of cellulitis that the veteran experienced in 1985 and 1986, like those he experienced in service, improved or resolved with treatment, because the VA examiner in January 1987 noted upon examination that there was "[n]o evidence at this time of cellulitis." This evidence supports a finding that the cellulitis experienced by the veteran in service was similar to, rather than different from, the cellulitis he experienced in 1985 and 1986. Thus, that the cellulitis in service responded to treatment does not necessarily demonstrate that it was not "intermittent" cellulitis, and this evidence does not meet the high burden of proof required to show that the March 1987 RO's determination that the cellulitis in service was "intermittent" cellulitis was clearly and unmistakably erroneous. The Board also observes that, although in their respective November 1986 and January 1987 reports, the private and VA physicians first rendered diagnoses of disorders other than cellulitis -- "recurrent stasis edema" by the private physician and "peripheral venous insufficiency" by the VA physician -- and then indicated that cellulitis accompanied these disorders or was a manifestation of them, e.g., "peripheral venous insufficiency with . . . intermittent cellulitis," the physicians described the cellulitis as "intermittent," "recurrent," and "chronic," and they did not distinguish it from the two episodes of cellulitis which the veteran reported having in service. Instead, the private physician's comments, although not directly addressing the question of a relationship between the current cellulitis and the cellulitis in service, do reflect a connection. For example, the private physician's diagnosis was "[r]ecurrent stasis edema, lower legs and feet, with superimposed cellulitis -- chronic and existing at least since 1969. (Italics added.) Although diagnoses and medical conclusions which examiners base on a history provided by a veteran may not always constitute reliable medical evidence, in this case the Board observes that what the veteran reported to the doctors about his cellulitis in service is verified by the service medical records. In addition, the private doctor recorded a description of some symptoms that accompanied the current cellulitis that were similar to symptoms which accompanied the cellulitis in service. The private physician noted that "frequently, he will develop not only femoral adenitis, but axillary adenopathy, as well." Adenitis is "inflammation of a gland," and adenopathy is "enlargement of the glands, especially of the lymphatic glands." Dorland's Illustrated Medical Dictionary 28 (27th ed. 1988). In September 1967, when the veteran was treated for cellulitis of the left foot, a doctor noted lymphadenitis of the left groin. Lymphadenitis is "inflammation of one or more lymph nodes, usually caused by a primary focus of infection elsewhere in the body." Dorland's at 960. Similarly, in July 1969, when the veteran was treated for cellulitis of the right leg, physical examination revealed "slightly tender right inguinal nodes." This evidence, which was before the RO in March 1987, supports a finding that the cellulitis experienced by the veteran in service was similar to, rather than different from, the cellulitis he experienced in 1985 and 1986. Although the history reported by the veteran regarding the cellulitis he had in service is verified by the service medical records, what is not corroborated by any medical evidence is the veteran's history of having experienced episodes of cellulitis between 1969 and 1985. However, continuity of symptomatology is not the only way to establish service connection. See 38 C.F.R § 3.303(d) (1994); Cosman v. Principi, 3 Vet.App. 503, 505 (1992) ("According to [section 3.303(d)], even though a veteran may not have had a particular condition diagnosed in service, or for many years afterwards, service connection can still be established."); Triplette v. Principi, 3 Vet.App. 370, 375 (1992); Godfrey v. Derwinski, 2 Vet.App. 352, 356 (1992); Douglas v. Derwinski, 2 Vet.App. 103, 108-09 (1992). To conclude, therefore, based on the absence of medical evidence of cellulitis between 1969 and 1985, that the March 1987 decision to grant service connection was clearly erroneous would constitute a reweighing of the evidence rather than a finding that the March 1987 RO decision was "fatally flawed" by an "undebatable" error, "the kind of error, of fact or of law, that . . . compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error." Fugo, 6 Vet.App. at 43 (1993). Accordingly, the Board concludes that the March 1987 RO decision to grant service connection for intermittent cellulitis, right lower extremity, was not clearly and unmistakably erroneous and that the December 1991 RO decision so finding was in error. ORDER Service connection for cellulitis, right lower extremity, is restored. REMAND In January 1991, the veteran claimed an increased (compensable) disability rating for his service-connected cellulitis, right lower extremity. In February 1991, in support of the veteran's claim, the RO received many VA medical progress notes, dated between April 1990 and February 1991, showing treatment for cellulitis. In May 1991, the RO notified the veteran of its March 1991 proposal to sever service connection for cellulitis, right lower extremity, and it severed service connection in December 1991. The veteran filed a notice of disagreement in March 1992, and the RO issued a statement of the case in April 1992. In the statement of the case and in a later supplemental statement of the case, the RO noted that it also had denied the veteran's claim for an increased rating for his service-connected cellulitis, right lower extremity, because such an increase was not warranted by the evidence submitted prior to severance of service connection. Given that this decision of the Board restores service connection for cellulitis, right lower extremity, and to ensure that VA has met its duty to assist the claimant in developing facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following developments: 1. The veteran should be asked to provide the names and addresses of all private doctors or medical facilities, including VAMCs, where he has been treated for cellulitis or any other skin disorder since 1991. All records not already on file should be obtained and made part of the claims folder. If some records are not available, that fact and the reason(s) should be noted in the claims folder. 2. The RO should schedule the veteran for a VA special dermatological examination. The veteran should be contacted in this regard and asked whether there are active stages of the cellulitis. If so, the RO should schedule the examination during a period when the condition is active. See Ardison v. Brown, 6 Vet.App. 405, 408 (1994). The claims folder and a copy of this remand must be made available to and reviewed by the examiner prior to the examination. The report of examination should include a detailed account of all manifestations of skin pathology found to be present. All necessary tests should be conducted, and the examiner should review the results of any testing prior to completion of the report. The examiner must provide diagnoses of any current skin pathology. In 1991 and 1992, the veteran was diagnosed with eczema. If the examiner finds that there are different disorders of the skin, the examiner must express an opinion as to the likelihood that the veteran's service-connected cellulitis has caused any other skin disorder or pathology found. If cellulitis is present at the time of the examination, the examiner should describe in detail its manifestations and the effect it has on the veteran's ability to perform any relevant functions, such as walking, bending, sitting, driving, etc. Whether or not cellulitis is not present at the time of the examination, the examiner, based on a review of all the medical evidence in the claims file relevant to the veteran's cellulitis, including the service medical records, must comment on the nature of this disorder and render an opinion as to the likelihood that the veteran's service-connected cellulitis will continue to recur, how frequently it will recur, whether and to what extent the disorder when it recurs interferes with the veteran's ability to perform certain functions and how long such periods of interference can be expected to last on the average. The examiner should distinguish between interference in the ability to perform certain functions that is caused by the service-connected cellulitis and interference caused by other unrelated disorders. The examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached. 3. The RO must review the examination report and determine whether it is adequate for rating purposes and in full compliance with this remand. If the report is not, it must be returned to the examiner for correction. 4. Given that the veteran is also service-connected for a stab wound to the right shoulder which is also assigned a noncompensable rating, the RO should consider the veteran's claim under 38 C.F.R. § 3.324 (1994) if a compensable rating cannot be granted for his service-connected cellulitis under the VA Schedule for Rating Disabilities, 38 C.F.R., Part 4 (1994), in light of his request to be considered under that regulation. JAN DONSBACH Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1993).