Citation Nr: 0623473 Decision Date: 08/07/06 Archive Date: 08/15/06 DOCKET NO. 04-28 870 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for residuals of Bell's palsy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.W. Kim, Associate Counsel INTRODUCTION The appellant had unverified active service from January 1986 to January 1989 and served in the United States Navy Reserve, including from November 13 to December 8, 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that also denied the veteran's claim for service connection for post-traumatic stress disorder (PTSD). However, in a February 2005 signed statement, the appellant withdrew his claim for service connection for PTSD. Thus, the issue is no longer before the Board. In April 2005, the appellant testified before the undersigned Acting Veterans Law Judge at a Board hearing at the RO. FINDING OF FACT Giving the veteran the benefit of the doubt, the objective and probative medical evidence of record indicates that he has residuals of Bell's palsy that were incurred during a period of active military service. CONCLUSION OF LAW Resolving the doubt in the veteran's favor, residuals of Bell's palsy were incurred during active military service. 38U.S.C.A. §§ 101(24), 106, 1101, 1110, 1112, 1113, 1137, 5103-5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.159, 3.303, 3.307, 3.309 (2005). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist In November 2000 the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), which substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. § 5103 (West 2002 & Supp. 2005)). VA has long recognized that the Department has a duty to assist the veteran in developing evidence pertinent to his claim. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.103(a) (2005). The changes in law have amended the requirements as to VA's development efforts in this, and other pending cases, modifying and clarifying VA's duty to assist a claimant in evidentiary development. See VCAA, supra. See generally Holliday v. Principi, 14 Vet. App. 280 (2001). In addition, VA has published regulations to implement many of the provisions of the VCAA. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2005). Also, during the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (hereinafter referred to as "the Court") issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), that held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) applied to all five elements of a service connection claim. Id. However, in the instant case, although the veteran's service connection claim is being granted, no disability rating or effective date will be assigned and, as set forth below, there can be no possibility of prejudice to the veteran. As set forth herein, no additional notice or development is indicated in the veteran's claim. The RO will provide appropriate notice as to the rating criteria and effective date to be assigned prior to the making of a decision on those matters. In view of the favorable disposition of this appeal, discussed below, we find that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertaining to his claim, under both former law and the VCAA. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2005). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that a veteran need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. II. Legal Analysis The appellant contends, in essence, that he has residuals of Bell's palsy that were incurred while activated during his reserve service in November 1989. He also asserts that he developed Bell's palsy to a compensable degree within one year of separation from active service. Service medical records indicate the veteran was diagnosed with Bell's palsy on November 21, 1989, when it was noted he was on active duty for training, The November 1989 record diagnosed Bell's palsy, left side (incomplete paralysis and without pain). In July 1990, he was treated for complaints of facial numbness. According to an Abstract of Service and Medical History (NAVMED 6150/4), dated December 21, 1992, the veteran was assigned to the USS VALDEZ, from November 13 to December 8, 1989. "ACDUTRA" (evidently a reference to active duty for training) was noted in the "Diagnosis, Diagnosis Number and Remarks" column. This record was issued by the Naval Reserve Center Tulsa, in Broken Arrow, Oklahoma. An April 2004 VA examination report diagnosed Bell's palsy with residual weakness on the left side of the face. A July 2004 VA medical record indicates that the veteran had "severe" Bells Palsy in 1989 and now had "significant" impairment with "80 % nerve damage". Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Also, certain chronic diseases, including bulbar palsy, may be presumed to have been incurred during service if manifest to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.307, 3.309 (2005). Service connection may also be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training or injury incurred or aggravated while performing inactive duty training. 38 U.S.C.A. §§ 101(24), 106 (West 2002); 38 C.F.R. § 3.6 (2005). Further, "active duty for training" includes full-time duty performed by reservists for training purposes. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Thus, with respect to the appellant's reserve service, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training or injury incurred or aggravated while performing inactive duty for training. 38 U.S.C.A. §§ 101(24), 106, 1131; 38 C.F.R. §§ 3.6, 3.303, 3.304 (2005). Service connection is not legally merited when the disability results from a disease process occurring during inactive duty for training. The veteran has contended that service connection should be granted for residuals of Bell's palsy that he initially experienced in November 1989. The service medical records document he was diagnosed with the disorder on November 21, 1989, while on "ACDUTRA" aboard the USS VALDEZ. VA medical records dated in 2004 reflect left sided facial weakness attributed to the Bell's palsy. While it may be argued that the veteran's Bell's palsy was not manifest to a compensable degree when initially diagnosed in November 1989, within the first year after he was apparently discharged from service, it, nevertheless appears, that the disease was diagnosed during a period of active duty for training. The Board finds that the evidence is equally balanced as to whether the veteran has residuals of Bell's palsy as a result of active service. Recognizing that the standard to be applied here is the judgment of a reasonably prudent layperson, the Board, exercising our discretion under the reasonable-doubt/benefit- of-the-doubt doctrine, finds that the evidence is in relative equipoise as to whether residuals of Bell's palsy were incurred in active service. The Board emphasizes that this grant is based upon reasonable doubt, and does not reflect error on the part of the RO in its thorough development and adjudication of the matter. Accordingly, in resolving doubt in the veteran's behalf, the Board concludes that service connection for residuals of Bell's palsy is in order. 38 U.S.C.A. §§ 101(24), 106, 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.1, 3.6, 3.303, 3.307, 3.309. ORDER Service connection for residuals of Bell's palsy is granted. ____________________________________________ D.J. DRUCKER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs