Citation Nr: 0810788	
Decision Date: 04/02/08    Archive Date: 04/14/08

DOCKET NO.  03-22 286	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los 
Angeles, California


THE ISSUES

1.  Entitlement to service connection for coronary artery 
disease (CAD) status post bypass.

2.  Entitlement to service connection for Bell's palsy.

3.  Entitlement to an increased rating for the service-
connected left eye visual defect, rated as noncompensable 
from January 30, 1946 to March 31, 1946, and rated as 10 
percent disabling thereafter.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

L.B. Cryan, Counsel
INTRODUCTION

The veteran had active service from January 1943 to January 
1946.

This case is before the Board of Veterans' Appeals (Board) on 
appeal from a February 2003 rating decision by the Department 
of Veterans Affairs (VA) Regional Office (RO) in Cleveland, 
Ohio, that denied service connection for CAD and Bell's 
Palsy, and granted service connection for left eye visual 
defect with a noncompensable rating assigned from January 30, 
1946 and a 10 percent rating assigned from April 1, 1946.

At the time of the February 2003 rating decision, the veteran 
resided in Texas, and jurisdiction of the claims file was 
held by the Waco, Texas RO.  However, the claims file was 
temporarily transferred to the Cleveland RO for expedited 
adjudication because of the veteran's advancing age.  After 
the February 2003 rating decision was issued, the claims file 
was returned to Waco.  In February 2005, the veteran 
relocated to California, and jurisdiction of the claims file 
was permanently transferred to the Los Angeles, California 
RO.  

The issue of entitlement to an increased rating for the 
service-connected left eye visual defect is addressed in the 
REMAND portion of the decision below and is REMANDED to the 
RO via the Appeals Management Center (AMC), in Washington, 
DC.


FINDINGS OF FACT

1.  The veteran did not have a heart condition during service 
or for many years following discharge from service, and the 
medical evidence of record does not show that the veteran's 
current CAD had its onset during service or is otherwise 
related to service.  

2.  The veteran was diagnosed with Bell's palsy in 2001 and 
it resolved within 7 days; the veteran does not have a 
current diagnosis of Bell's palsy.

CONCLUSIONS OF LAW

1.  CAD was not incurred in or aggravated by service, nor may 
it be presumed to have been incurred therein.  38 U.S.C.A. §§ 
1110, 1131, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.303, 3.304, 3.307, 3.309 (2007).

2.  Bell's palsy was not incurred in or aggravated by 
service, nor may it be presumed to have been incurred 
therein.  38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002 & 
Supp. 2007); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Notice and Assistance

Upon receipt of a complete or substantially complete 
application, VA must notify the claimant of the information 
and evidence not of record that is necessary to substantiate 
a claim, which information and evidence VA will obtain, and 
which information and evidence the claimant is expected to 
provide.  38 U.S.C.A. § 5103(a).  VA must request that the 
claimant provide any evidence in the claimant's possession 
that pertains to a claim.  38 C.F.R. § 3.159.

The notice requirements apply to all five elements of a 
service connection claim: 1) veteran status; 2) existence of 
a disability; 3) a connection between the veteran's service 
and the disability; 4) degree of disability; and 5) effective 
date of the disability.  Dingess v. Nicholson, 19 Vet. App. 
473 (2006).

The notice must be provided to a claimant before the initial 
unfavorable adjudication by the RO.  Pelegrini v. Principi, 
18 Vet. App.112 (2004).

The notice requirements may be satisfied if any errors in the 
timing or content of such notice are not prejudicial to the 
claimant.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), 
rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  

The RO provided the appellant pre-adjudication notice by 
letter dated in August 2002.  

The notification substantially complied with the requirements 
of Quartuccio v. Principi, 16 Vet. App. 183 (2002), 
identifying the evidence necessary to substantiate a claim 
and the relative duties of VA and the claimant to obtain 
evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), 
requesting the claimant to provide evidence in his or her 
possession that pertains to the claims.  

While the notification did not advise the veteran of the laws 
regarding degrees of disability or effective dates for any 
grant of service connection, no new disability rating or 
effective date for award of benefits will be assigned as the 
claims for service connection are denied.  Accordingly, any 
defect with respect to that aspect of the notice requirement 
is rendered moot.  See Bernard v. Brown, 4 Vet. App. 384, 394 
(1993). 

Moreover, the notices provided to the veteran over the course 
of the appeal provided all information necessary for a 
reasonable person to understand what evidence and/or 
information was necessary to substantiate his claims.  The 
veteran has received all essential notice, has had a 
meaningful opportunity to participate in the development of 
his claims, and is not prejudiced by any technical notice 
deficiency along the way.  See Conway v. Principi, 353 F.3d 
1369 (Fed. Cir. 2004); Sanders v. Nicholson, 487 F. 3d 881 
(Fed. Cir. 2007).

VA has obtained service medical records, assisted the veteran 
in obtaining evidence, afforded the veteran physical 
examinations, obtained medical opinions as to the etiology 
and severity of disabilities, and afforded the veteran the 
opportunity to give testimony before the Board.  All known 
and available records relevant to the issues on appeal have 
been obtained and associated with the veteran's claims file; 
and the veteran has not contended otherwise.  The claims file 
reflects that several attempts were made to obtain specific 
records from military hospitals in the late 1940's and 
1950's, per the veteran's request; however, all attempts were 
unsuccessful.  

VA has substantially complied with the notice and assistance 
requirements and the veteran is not prejudiced by a decision 
on the claim at this time.

II.  Service Connection

Service connection may be established for a disability 
resulting from personal injury suffered or disease contracted 
in the line of duty or for aggravation of preexisting injury 
suffered or disease contracted in the line of duty.  38 
U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.

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).

Where there is a 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 attributable to 
intercurrent causes.  38 C.F.R. § 3.303(b).  This rule does 
not mean that any manifestations in service will permit 
service connection.  To show 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 as distinguished from merely 
isolated findings or a diagnosis including the word 
"chronic".  When the disease entity is established, there 
is no requirement of evidentiary showing of continuity.  When 
the fact of chronicity in service is not adequately 
supported, then a showing of continuity after discharge is 
required to support the claim.  38 C.F.R. § 3.303(b).

Continuous service for 90 days or more during a period of 
war, or peace time service after December 31, 1946, and post-
service development of a presumptive disease such as CAD, for 
example, to a degree of 10 percent within one year from the 
date of termination of such service, establishes a rebuttable 
presumption that the disease was incurred in service.  38 
U.S.C.A. §§ 1101, 1112, 1113; 1137; 38 C.F.R. §§ 3.307, 
3.309.

In order to prevail on the issue of service connection, there 
must be medical evidence of a (1) current disability; (2) 
medical, or in certain circumstances, lay evidence of in-
service incurrence or aggravation of a disease or injury; and 
(3) medical evidence of a nexus between the claimed in-
service disease or injury and the present disease or injury.  
Hickson v. West, 12 Vet. App. 247, 253 (1999).  

The credibility and weight of all the evidence, including the 
medical evidence, should be assessed to determine its 
probative value, and the evidence found to be persuasive or 
unpersuasive should be accounted for, and reasons should be 
provided for rejecting any evidence favorable to the 
claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992).  
Equal weight is not accorded to each piece of evidence 
contained in the record; every item of evidence does not have 
the same probative value.  

In determining whether service connection is warranted for a 
disability, 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.  Gilbert v. Derwinski, 1 Vet. App. 
49 (1990).

The service medical records are negative for complaints, 
findings or diagnosis of CAD, or any other heart-related 
condition.  Likewise, the service medical records are 
negative for any complaints, findings or diagnosis of Bell's 
palsy.  

Post service medical records show a diagnosis of Bell's palsy 
in March 2001.  The first evidence of cardiac complication 
comes from 1994 private hospital records.  These records show 
that the veteran underwent coronary artery bypass in May 
1994.  VA outpatient treatment records also show that the 
veteran was hypertensive; however, an October 2001 VA lipid 
clinic note revealed that the veteran's hypertension had been 
stable on medication for the previous 15 years.  The medical 
evidence of record does not link the veteran's CAD to 
service.  

In sum, the veteran did not have a heart condition during 
service or for over 40 years after discharge from service, 
and there is no medical evidence showing that the current CAD 
has any relationship to service.  Absent a nexus between the 
veteran's military service and his current CAD, service 
connection for CAD must be denied.  

In this case, the credibility of the veteran's testimony and 
the lay statements must be weighed against the other evidence 
of record, including the objective findings showing no CAD 
until 1994.  A prolonged period without medical complaint can 
be considered, along with other factors concerning the 
claimant's health and medical treatment during and after 
military service, as evidence of whether a disability was 
incurred in service or whether an injury, if any, resulted in 
any chronic or persistent disability which still exists 
currently.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 
2000).  The trier of fact should consider all the evidence 
including the availability of medical records, the nature and 
course of the disease or disability, the amount of time that 
elapsed since military service, and any other relevant facts 
in considering a claim for service connection.  See Dambach 
v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000) (holding 
that the absence of medical records during combat conditions 
does not establish absence of disability).  Thus, when 
appropriate, the Board may consider the absence of evidence 
when engaging in a fact finding role.  See also, Jordan v. 
Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing 
separately) (noting that the absence of evidence may be 
considered as one factor in rebutting the aggravation part of 
the section 1111 presumption of soundness).

The "absence of evidence" or "negative" evidence of any 
complaints, findings or diagnosis of a heart condition during 
service in this case is supported by affirmative evidence 
which tends to show that no heart condition was incurred 
during that time.  Such affirmative evidence consists of the 
separation examination report which showed a normal cardiac 
system, and no other symptoms associated with CAD or other 
heart condition.  

Similarly, the evidence of record does not show any 
relationship between the veteran's Bell's palsy, diagnosed in 
2001, and service.  The first evidence of a diagnosis of 
Bell's palsy is noted in VA outpatient treatment records from 
April 2001.  These records show that the veteran was 
hospitalized at a private facility two weeks earlier with 
left hemiparesis and left facial numbness.  He was evaluated 
by a neurologist who diagnosed him with Bell's palsy.  He was 
given acyclovir and a prednisone taper.  The veteran reported 
that the defect resolved within 7 days after starting 
treatment.  There was no loss of upper extremity motor 
function.  There is no other mention of Bell's palsy in the 
claims file.  VA treatment records from as recent as 2006 do 
not list Bell's palsy as one of the veteran's current 
disabilities.  Moreover, Bell's palsy was not shown during 
service.  Absent a current disability and a nexus to service, 
service connection for Bell's palsy must be denied.  

A claim for service connection requires medical evidence 
showing that the veteran currently has the claimed 
disability.  See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 
1997.  Service connection may not be granted unless a current 
disability exists.  In other words, it is essential that 
there be a current disability in order to establish service 
connection.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 
1998).  Absent proof of a current disability, there can be no 
valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 
(1992).  In this case, there is no medical evidence 
establishing a current diagnosis of Bell's palsy for which 
service connection may be established.  Moreover, Bell's 
palsy was not shown during service or for over 50 years 
following discharge from service.  

The preponderance of the evidence is against the claims of 
service connection for CAD and Bell's palsy; there is no 
doubt to be resolved; and service connection for CAD and/or 
Bell's palsy is not warranted.  38 U.S.C.A. § 5107(b), 38 
C.F.R. § 4.3.  


ORDER

Service connection for CAD is denied.  

Service connection for Bell's palsy is denied.  


REMAND

The veteran seeks an increased rating for the service-
connected left eye visual defect, rated as noncompensable 
from January 30, 1946 to March 31, 1946 and rated as 10 
percent disabling thereafter.  

Historically, the veteran reported that his left eye was 
pierced with a nail during childhood, at approximately age 8.  
The defect was noted at entry into service; however, service 
connection for left eye visual defect was granted after 
discharge from service on the basis of aggravation of a pre-
existing disability.  

The veteran's service-connected left eye visual defect has 
been rated, since service, based on loss of visual acuity.  
According to a June 2005 VA examination report, the veteran 
had restricted field loss with Goldman [perimeter chart] in 
both eyes, and a corneal scar in the left eye nasally.  A 
July 2005 VA examination report noted that the veteran had a 
diagnosis of pseudophakia in both eyes with capsular haze in 
the right eye.  Private records from 2004 show surgery to 
correct cataracts.  

The RO has not considered whether the veteran's service 
connected disability is more appropriately rated based on 
impairment of field of vision.  Rather, the RO determined 
that the disability should be rated based on impairment of 
visual acuity because the veteran's other eye-related 
diagnoses, such as mixed astigmatism, compound hyperoptic 
astigmatism, corneal scar left eye, dermatochalasia both 
eyes, and restricted visual fields, for example, were 
unrelated to the veteran's service-connected disability.  It 
is unclear as to what medical evidence the RO relied upon to 
support that determination.  Importantly, the RO must base 
its decisions on independent medical evidence rather than 
rely upon its own unsubstantiated medical opinions.  See 
Colvin v. Derwinski, 1 Vet. App. 171 (1991).  

The veteran should be afforded a comprehensive VA examination 
provided by an ophthalmologist to determine the current 
nature, extent and severity of the service-connected left eye 
visual defect.  Importantly, the examiner should list all of 
the veteran's left eye conditions and indicate whether they 
are related to the service-connected disability.  Although 
the veteran's bilateral cataracts, for example, are probably 
not associated with the service-connected left visual defect, 
there is certainly reason to believe that the left eye 
corneal scar is related to the service-connected disability.  
Nevertheless, these determinations must be made by a medical 
professional; not the RO or the Board.  In particular, the 
examiner should opine as to what conditions are related to 
the service-connected condition, and whether the veteran's 
service-connected disability would be more appropriately 
rated based on impairment of field of vision rather than loss 
of visual acuity.  

All pertinent VA and/or private treatment records should be 
obtained and associated with the claims file.  

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the claims 
file all available recent VA and/or 
private medical records concerning 
treatment received by the veteran for his 
left eye visual defect, not already 
associated with the claims file.  

2.  Schedule the veteran for a VA 
examination by an ophthalmologist to 
determine the current severity of the 
service-connected left eye visual defect 
in terms of the Rating Schedule.  All 
indicated tests, including field vision 
impairment must be conducted.  The claims 
file, including a copy of this REMAND, 
must be made available to and reviewed by 
the examiner in conjunction with the 
examination.  The examiner should provide 
an explanation as to what conditions are 
associated with, or affect the veteran's 
service-connected left eye vision, 
including central visual acuity and field 
of vision.  The examiner should address 
each of the veteran's eye conditions and 
include, in layman's terms if possible, 
how they affect his visual acuity and 
field of vision.  A complete rationale 
for any opinion expressed must be 
provided.  

3.  Following completion of the 
development requested, readjudicate the 
veteran's claim.  If the benefit sought on 
appeal remains denied, the veteran and his 
representative should be provided with a 
supplemental statement of the case (SSOC), 
and an appropriate period of time allowed 
for response.  

The appellant has the right to submit additional evidence and 
argument on the matter the Board has remanded.  Kutscherousky 
v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).






______________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs