Citation Nr: 1301351	
Decision Date: 01/14/13    Archive Date: 01/23/13

DOCKET NO.  09-47 834	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho


THE ISSUES

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

2.  Entitlement to service connection for disability of the left knee, post total knee replacement.

3.  Entitlement to service connection for disability of the right hip.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Heather J. Harter, Counsel


INTRODUCTION

The Veteran served on active duty from September 1968 to September 1972.

This matter comes before the Board of Veterans' Appeals (Board) from a February 2009 RO decision.  

The issues of entitlement to service connection for a left knee disability and a right hip disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran when further action on his part is required.


FINDINGS OF FACT

1.  The Veteran experienced an attack of Bell's palsy during service, as documented in his service treatment records.  

2.  The Veteran has a documented current disability involving Bell's palsy. 

3.  Persuasive medical evidence links the episode in service to subsequent attacks of Bell's palsy.


CONCLUSION OF LAW

Service connection for Bell's palsy is warranted.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran is seeking service connection for Bell's palsy.

Duties to notify and assist

When an application for benefits is received, VA has certain notice and assistance requirements under the law.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must:  (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  The VA is also required to inform the Veteran of how the VA assigns disability ratings and effective dates.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  This information was provided in a February 2010 letter.

Given the positive resolution reached below, the Board finds that an exhaustive description of how the VA has fulfilled its duty to assist the Veteran in developing this case is not necessary.

Standard of review

Once the evidence has been assembled, it is the Board's responsibility to evaluate the record.  38 U.S.C.A. § 7104(a).  When there is an approximate balance of 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; 38 C.F.R. § 3.102.  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  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, 1 Vet. App. at 54.

The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation.  See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991).  The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review.  See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990).  To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).

Analysis

Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease.  38 U.S.C.A. §§ 1110, 1131.  Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service.  Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303.

To establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service."  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

The Veteran had an episode of Bell's palsy during service, which apparently resolved upon treatment.  No sequellae were reported on the discharge examination report.  He experienced a second episode many years later in 2008, and now requests service connection for the disability.  

A February 2011 VA medical opinion is to the effect that the Veteran had no residuals of the in-service episode of Bell's palsy, with no symptoms for forty years.  

Following this VA opinion, the Veteran submitted a private medical opinion dated in March 2011.  This physician notes that patients who have an initial Bell's palsy attack in their younger years are more prone to have another attack later, and that therefore there is a causal connection between the first in-service attack and the second attack.  The private neurologist also commented upon the VA medical opinion, as follows:  

I note that [the VA examiner] made a point in his opinion that this patient did not have any symptoms after his original Bell's palsy.  That is not the issue.  Nobody is disputing the fact that the patient had residuals.  There simply weren't any.  The major point that I am making in my opinion is that there is a greater than normal probability that with a first Bell's palsy, another one years later is most likely to occur.  This was the case with this patient.

Upon review of the evidence of record, the Board finds the evidence is in favor of the Veteran's claim.  The private neurologist's opinion is more probative than the VA examiner's, as it addresses the basis for a grant of service connection.  As set forth above, continuity of symptomatology is not required for a grant of service connection in every case.  In this case, the Veteran had the first attack of Bell's palsy during service, he has a current disability involving Bell's palsy, and medical evidence linking the two.  This is all that is required for a grant of service connection.  Shedden.  In reaching this conclusion, the Board acknowledges that modern medicine has not yet established complete understanding of the etiology of Bell's palsy.  However, the Board is required to render the best decision possible based upon the best evidence.  In this case, that decision is in favor of the Veteran.  Service connection is therefore warranted for Bell's palsy.  The benefit sought is therefore granted.



ORDER

Service connection for Bell's palsy is granted, subject to the laws and regulations governing the award of monetary benefits.


REMAND

Left knee

The report of the general medical examination conducted in July 1968 in conjunction with the Veteran's entrance onto active duty reflects that when he was 17 years old, he had undergone surgery on his left knee to repair a ligament after a football injury.  The report bears several pertinent notations reflecting assessment of the knee.  One indicates that he was "at full unrestricted activity," and was asymptomatic.  Another notation is dated in August 1968 and reflects that a letter from an orthopedic surgeon-presumably the surgeon who performed the 1966 surgery, confirmed that the Veteran had full range of motion, good function, and that he was fit for training.  A further notation dated in September 1968 was to the effect that no additional defects were noted and the Veteran was fit for military service.  

Recent medical records reflect that the Veteran underwent a left total knee replacement due to degenerative arthritis in 2009.  He asserts that the rigors of service aggravated the knee.  

Unfortunately, this appeal is not yet ripe for appellate review because the medical records available for review are incomplete.  The Veteran reports having undergone left knee surgery in 1991 at the Boise VA Medical Center.  However, the earliest medical records available for review are dated in 2000.  Records reflecting the 1991 surgery are obviously pertinent to the appeal; however, records reflecting the condition of his knee at any point more proximate to service would be helpful to adjudicators in reviewing his appeal.  Any VA medical records are deemed to be constructively of record in proceedings before the Board and should be obtained prior to further review of the claims file.  Bell v. Derwinski, 2 Vet. App. 611 (1992).  

In this regard, the Veteran and his representative are advised that if he has received any non-VA medical care for his left knee complaints, at any point after service, he should notify the VA so that VA may assist him in obtaining these records for review by adjudicators.  

Right hip

The Veteran's service treatment records reflect that several months prior to his discharge from service, he complained of pain in his right hip.  The physician who examined him was unable to determine whether the pain was of muscular or skeletal origin.  When the pain persisted for a period of three months, the Veteran was referred to the orthopedics service for evaluation.  The report of this evaluation indicates that the Veteran was to be scheduled for X-ray studies prior to further evaluation.  His service treatment records do not include any X-ray reports dated prior to his discharge from service, or any further orthopedics records, however.  The report of the Veteran's general medical examination conducted approximately one month later simply reflects that he had been evaluated for pain in his right thigh and that no current right hip disability was noted.  Given this situation, the Board determines that an additional attempt to obtain X-ray reports and/or further orthopedic reports should be made.  Governing regulation provides that VA will make as many requests as are necessary to obtain relevant records from a Federal Department or agency, and that VA will end its efforts to obtain such records only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile.  38 C.F.R. § 3.159(c)(2).  

At the moment, it is unclear what exactly the Veteran's current disability involving his right hip is.  His VA treatment records do not reflect complaints or treatment for a right hip problem.  Obtaining the longitudinal records requested for the left knee will be helpful toward this end, and also helpful toward establishing a nexus to service in the form of continuity of symptomatology.  We observe, however, that the Veteran's statements of having experienced pain in the right hip since service, would appear to be credible in nature, and must be taken into account by adjudicators.  In the attempt to answer these questions, after any further service treatment records have been obtained, or after VA has determined that no more records exist, the Veteran should be provided with a VA orthopedics examination.  

Accordingly, the case is REMANDED for the following action:

1.  The RO should obtain all records of VA medical care afforded to the Veteran by the VA Medical Center in Boise, Idaho, and all related clinics, beginning from the date he initially established eligibility for VA medical care for inclusion in his claims file and/or his Virtual VA file.  

2.  The RO should make a specific request for X-ray and any clinical reports from the Naval Hospital in Jacksonville, Florida, dated in August and/or September 1972.  All attempts to obtain these records should be fully documented for the Veteran's file.  

3.  ONLY AFTER further service treatment records have been obtained, or after VA has determined that no more records exist, the veteran should be afforded a VA orthopedic examination to identify all current pathology and to identify any nexus between current disability and the in-service findings.  The claims folder, including all records obtained pursuant to the above requests, must be made available to the examiner for review before the examination.  All tests and studies deemed helpful by the examiner should be conducted in conjunction with the examination.  The examiner is requested to review all pertinent medical records and to conduct a clinical examination of the Veteran's right hip/thigh.  If a current diagnosis is identified, the examiner is requested to render an opinion as to whether it is more, less, or equally likely that the currently-shown disability is more, less, or equally likely to be caused by or related to the symptoms reflected in his service treatment records.  The complete rationale for all opinions expressed should be fully explained. 

4.  After the development requested above has been completed, the RO should again review the record.  Any further evidentiary development which may become apparent, such as obtaining a medical opinion as to the Veteran's left knee claim, should be accomplished as appropriate.  If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond.

The Veteran has the right to submit additional evidence and argument on the matters 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 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. 2012).




______________________________________________
M. W. Greenstreet
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs