Citation Nr: 1120041	
Decision Date: 05/24/11    Archive Date: 06/06/11

DOCKET NO.  07-29 328	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Entitlement to service connection for a neurologic disability (claimed as transient ischemic attack or Bell's palsy), to include as secondary to service-connected hypertension.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. Wishard, Associate Counsel


INTRODUCTION

The Veteran had active duty for training from July 1987 to December 1987, and active duty from January 2004 to January 2005.  

This matter comes before the Board of Veterans' Appeals (Board) from May 2005 and October 2006 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Indianapolis, Indiana.  In May 2005, the RO denied the Veteran's claim for entitlement to service connection for Bell's palsy, and several other disabilities, to include a right shoulder disability.  The Veteran filed a timely notice of disagreement (NOD), and a timely VA Form 9 for the issues of entitlement to service connection for Bell's palsy and a right shoulder disability.  In January 2006, the Veteran submitted a written statement withdrawing her appeal for entitlement to service connection for Bell's palsy and a right shoulder disability.  She stated that she had been informed that her condition was actually a transient ischemic Attack (TIA), and that she wished to file for entitlement to service connection for TIA.  She noted that her doctor had informed her that the right shoulder disability was a residual of a TIA; thus, it appears that the Veteran was only continuing a claim with regard to neurological aspects of an incident which occurred in service.  In October 2006, the RO denied the Veteran's claim of entitlement to service connection for TIA.  Subsequently, she filed a timely NOD and VA Form 9.  The VA Form 9 did not mention a right shoulder disability, separate and apart from a TIA.  The claims file contains contradictory clinical evidence as to whether the Veteran suffered from Bell's palsy or a TIA in service.  In Clemons v. Shinseki, 23 Vet. App 1 (2009), the Court held that an appellant's diagnoses which arise from the same symptoms for which the appellant is seeking benefits, do not relate to entirely separate claims not yet filed by the appellant.  Rather, these diagnoses should be considered to determine the nature of the appellant's current condition relative to the claim submitted; therefore, the Board has recharacterized the issue on appeal to reflect that the Veteran is seeking service connection for a neurologic disability, however diagnosed.  The Board also finds that a right shoulder disability, separate and apart from a neurologic disability, is not on appeal.

In January 2007, the Veteran testified before a Decision Review Officer (DRO) in Indianapolis, Indiana.  A transcript of that hearing is of record.


FINDING OF FACT

There has been no demonstration by competent medical,  nor competent and credible lay, evidence of record, that the Veteran's February 2004 incident of facial drooping and difficulty speaking, which has been clinically diagnosed as Bell's palsy or as a TIA, was other than acute and transitory and resolved with no residual disability. 


CONCLUSION OF LAW

A neurologic disability was not incurred in or aggravated by active service, nor proximately due to, the result of, or aggravated by, service-connected disability.  38 U.S.C.A. §§ 1101, 1110, 1111, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304. 3.310 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010).


Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim.  As previously defined by the courts, those five elements include:  (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.  Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, it will assist in substantiating or that is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  

In VA correspondence to the Veteran in February 2005 (Bell's palsy) and May 2006 (TIA), VA informed her of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence.  The May 2006 notice also informed the Veteran as to the law pertaining to the assignment of a disability rating and effective date as the Court required in Dingess/Hartman.  

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable agency of original jurisdiction decision.  Because the VCAA notice was not completed prior to the initial AOJ adjudication denying the claim, the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini.  Here, the Board finds that any defect with respect to the timing of the VCAA notice was harmless error.  Although complete notice was provided to the appellant after the initial adjudication, the claim was readjudicated thereafter, and the appellant therefore, has not been prejudiced.  The content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman.  The Veteran has been provided with every opportunity to submit evidence and argument in support of her claim, and to respond to VA notices.  

The VCAA requires that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996).  The Board finds the VCAA notice requirements have been met in this case.

Duty to assist

With regard to the duty to assist, the claim's file contains the Veteran's service treatment records (STRs), private medical records, and the Veteran's statements in support of her claim, to include her testimony at a DRO hearing.  The Board has carefully reviewed the statements and concludes that there has been no identification of further available evidence not already of record.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a further duty to obtain.  

VA examinations and opinions with respect to the issue on appeal were obtained in March 2005 and October 2006.  38 C.F.R. § 3.159(c)(4).  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examinations/opinions obtained in this case are adequate.  They consider the pertinent evidence of record, to include statements of the Veteran regarding in-service trauma, and the Veteran's STRs and private medical records.  The October 2006 VA examination report provides a rationale for the opinion proffered.  In addition, the Board finds, based on both the private and VA evidence of record, that the Veteran does not have residuals of an in-service neurologic event; therefore, an exact diagnosis of the in-service incident is not necessary to decide the issue on appeal.  

The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to her claim.  

Legal criteria

Service connection- in general

Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010).  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.  See 38 C.F.R.
§ 3.303(d).    

 "Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury."  Pond v. West, 12 Vet. App. 341, 346 (1999).  Where the determinative issue involves a medical diagnosis, competent medical evidence is required.  This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions.  Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992).

In Robinson v. Shinseki, 312 Fed. Appx. 336 (2009), the Court held that, in some cases, lay evidence will be competent and credible evidence of etiology.  Whether lay evidence is competent in a particular case is a question of fact to be decided by the Board in the first instance.  The Court set forth a two-step analysis to evaluate the competency of lay evidence.  First, Board must first determine whether the disability is the type of injury for which lay evidence is competent evidence.  If so, the Board must weigh that evidence against the other evidence of record-including, if the Board so chooses, the fact that the Veteran has not provided any in-service record documenting his claimed injury -to determine whether to grant service connection.  The Board observes that this Federal Circuit decision is nonprecedential.  However, see Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) [a non-precedential Court decision may be cited "for any persuasiveness or reasoning it contains"].  The Board believes that if Bethea applies to the utility of Court decisions, it surely applies to the utility of a decision of a superior tribunal, the Federal Circuit.  557 F.3d 1355 (Fed. Cir. 2009).  

Secondary service connection

Disability which is proximately due to, or aggravated by, a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a).

Analysis

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

The first element of a claim for service connection is that there must be evidence of a current disability.  For the reasons noted below, the Board finds that the first element has not been met.  

The Veteran's STRs reflect that in February 2004, she was treated for sudden onset of facial numbness/weakness with "thick tongue".  It was noted that she had had right facial drooping, and difficulty speaking.  There was a notation that she occasionally had headaches, but did not have one the day after the incident.  Results of a CT scan, an EGC, and a chest x-ray were all negative.  

The claims file includes a March 2005 VA examination report, an October 2006 VA examination report, and June 2005 private medical records.  The records all reflect that the Veteran does not have residuals of a neurologic event in service.

The March 2005 VA examination report reflects that the Veteran reported the onset of symptoms of Bell 's palsy in February 2004, but that the condition resolved after a few weeks with treatment.  A summary of problem specific history also notes that the Veteran's history of Bell's palsy was resolved.  It was noted that there were no significant effects on occupational activities and no effects of the problem on daily activities.  

An April 2005 private neurologic consultation record reflects that the Veteran was alert, oriented, and appropriate.  Her speech was fluent, there was no apraxias or agnosias.  Her right and left sides were intact, she followed complex commands, and her cranial nerves were intact.  Her motor exam was 5/5 bilaterally with no drift, fasciculations, or atrophy.  Cerebellar was intact with regard to finger-to-nose, heel-to-shin, and rapid alternating movements.  Her sensory was intact to all modalities, including in temperature, position, vibration, and soft touch.  Reflexes were 2+ and symmetric.  Her gait was normal.  The examiner opined that the Veteran's symptoms in service were more likely secondary to hypertensive encephalography rather than a true Bells' palsy.  He further noted " [L]uckily, she has not had any recurrent symptoms and her blood pressure is under good control currently." (Emphasis added.)  April 2005 private medical record reflects that an EMG and nerve conduction study were within normal limits.  

It was noted that the Veteran reported recurrent numbness in her arm; however, as noted above, the April 2005 EMG and nerve conduction study was within normal limits.  In addition, a private record, dated in May 2005, reflects the opinion of the examiner that the Veteran's arm pain was more musculoskeletal than anything else.  

The October 2006 VA examination report reflects that the Veteran reported a history of a neurologic symptoms in February 2004.  She reported that her symptoms gradually improved for about two weeks, and that the numbness was gone after about 7 to 10 days of the initial incident.  She noted that she had headaches before the February 2004 episode, but that they have gotten worse since then.  The examiner noted that the Veteran had a history of probable Bell's palsy and that she was currently asymptomatic.  He further noted that there are no current residuals of the event that happened in February 2004.   

Although, the evidence of record reflects that the Veteran had an in-service incident of a neurological nature, the evidence of record is against a finding of residuals of that incident.  As there are no residuals of an in-service neurological incident, service connection is not warranted.  See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997) (holding that compensation may only be awarded to an applicant who has a disability existing on the date of the application, not for a past disability). 

In the present case, there has been no demonstration by the medical evidence that the Veteran has a current disability related to the neurologic incident in service, regardless of whether it was Bell 's palsy or a TIA.  Service connection may not be established in the absence of demonstration of current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Both the private and VA clinicians found the Veteran to be asymptomatic, with no recurrent symptoms after the February 2004 incident.

The Board notes that the Veteran reported at the October 2006 VA examination that her headaches have increased in frequency and were a different type since the February 2004 incident.  There is no clinical evidence of record that she had a headache disability causally related to service, to include the February 2004 incident.  To the contrary, the October 2006 VA examiner, who was informed of the Veteran's complaints of headaches, found no residuals of the February 2004 incident.  Moreover, the Board finds that the Veteran is less than credible with regard to having had residual headaches since the February 2004 incident.  The only type of headache noted on the March 2005 VA examination report is sinus headaches.  There is no evidence of record that a sinus headache is related to her neurologic incident in service.  In addition, the 2005 private medical records are negative for any mention of headaches.  The Board finds that if the Veteran had been experiencing an increase in frequency, severity, or type of headaches, since service, or since the February 2004 incident, it would have been reasonable for her to have reported such, and for it to have been noted, when she had a neurologic consultation.  While the Veteran is competent to report headaches since service, she is not found to be credible with regard to any statement of having residual headaches.  Moreover, she has not been shown to have the medical expertise or training necessary to make findings of medical diagnosis or causation.  As such, her lay opinion does not constitute competent medical evidence and lacks probative value.  

Finally, the Board notes that the Veteran has averred that she should be service connected for her Bell's palsy or TIA as secondary to her service connected hypertension.  Since the Bell's palsy or TIA incident occurred in service, any clinically established residuals of such an incident could be service connected on a direct incurrence basis.  However, as there are no residuals, and as the Veteran has not suffered another Bell's palsy or TIA incident, service connection on a direct or secondary basis is not warranted.  The Board finds that it is unnecessary to make a finding as to whether the incident in February 2004 was Bell's palsy or a TIA.  As the clinical evidence is against a finding that the Veteran has residuals of the February 2004 incident, an exact determination of which of the two conditions the Veteran had is not warranted.  

As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and service connection for a neurologic disability is not warranted. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).


ORDER

Entitlement to service connection for a neurologic disability (claimed as Bell's palsy or a transient ischemic attack) is denied.





____________________________________________
U. R. POWELL 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs