Citation Nr: 1314515 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 12-32 453 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for paralysis of the left seventh cranial nerve (Bell's palsy). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran had active service from November 1952 to October 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which reopened the Veteran's claim for service connection for paralysis of the left seventh cranial nerve (Bell's palsy), but denied the claim on its merits. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A December 1996 rating decision denied service connection for paralysis of the left seventh cranial nerve (Bell's palsy). He did not appeal that decision. 2. The evidence associated with the claims file subsequent to the December 1996 rating decision regarding the claim for service connection for paralysis of the left seventh cranial nerve (Bell's palsy) is either cumulative, or redundant of evidence previously considered, or does not relate to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The December 1996 rating decision that denied service connection for paralysis of the left seventh cranial nerve (Bell's palsy) became final. 38 U.S.C.A. §§ 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. New and material evidence not having been received, service connection for paralysis of the left seventh cranial nerve (Bell's palsy) is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Introductory Matters In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). II. Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA) and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate the claim, including apprising him of his and VA's respective responsibilities in obtaining this supporting evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA to assist a claimant in obtaining this evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). A letter satisfying the notice requirements of 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in August 2011, prior to initially adjudicating the claim in September 2012. The letter informed him of the evidence required to substantiate the claim currently on appeal. The letter also provided notice regarding the disability evaluation and effective date elements of a service connection claim. The August 2011 notice letter also informed the Veteran of what constituted new and material evidence. The Veteran was informed that new evidence must be evidence that was submitted to VA for the first time and that was not cumulative. He was informed that material evidence must relate directly to substantiation of the claim. The letter also explained that his claim was previously denied because his service treatment records showed treatment for Bell's palsy, but there was no permanent residual disability shown at the time he was discharged from service or evidence of a current disability. Kent v. Nicholson, 20 Vet. App. 1 (2006). VA also fulfilled its duty to assist the Veteran with this claim by obtaining all potentially relevant evidence, which is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). The RO obtained the Veteran's service treatment records, private medical records, and VA outpatient treatment records. The Veteran was also afforded a VA examination in September 2012. The Board finds that the VA examination report is probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In sum, VA's heightened duty to notify and assist under the VCAA has been satisfied. The Veteran has had ample opportunity to participate in the development of his claim. III. Petition to Reopen a Claim for Service Connection for Paralysis of the Left Seventh Cranial Nerve (Bell's Palsy) In his September 2012 personal statement, the Veteran contends that service connection is warranted for his Bell's palsy. He explains that he has the same Bell's palsy now that he was treated for in the military, and as such, it should be service connected. See the September 2012 statement. Although the RO reopened the Veteran's claim for service connection for Bell's palsy in the September 2012 rating decision, this decision is not binding on the Board. The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate it de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, that is where the analysis must end. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239 (1993) (Board reopening is unlawful when new and material evidence has not been submitted). Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105(c). A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. "New" evidence means existing evidence not previously submitted to agency decision makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In December 1996, the RO denied the Veteran's claim for service connection for paralysis of the left seventh cranial nerve on the basis that while his service treatment records reflected treatment for Bell's palsy, there was no evidence of a then-current disability. The Veteran did not submit a notice of disagreement, and the rating decision became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103 (2012). In December 1996, the record consisted of the Veteran's service treatment records, VA outpatient treatment records from July 1996 to August 1996, private medical records dated November 1985 to June 1996, and a November 1996 VA examination report. Service treatment records reflected a diagnosis of Bell's palsy of the left seventh nerve in September 1955. It was noted that he was placed on heat and Vitamin B therapy. Upon discharge from service, clinical evaluation of the Veteran's head, face, neck, and scalp was normal, as reflected on the October 1956 report of medical examination. The VA outpatient treatment records dated July 1996 to August 1996 and private treatment records from November 1985 to June 1996 make no reference to Bell's palsy, and the November 1996 VA examiner concluded that there was no evidence of a disability in any of the cranial nerves or in any portion of the nervous system as examined. The VA examiner explained that the initial in-service complaint surrounding Bell's palsy was a "Bell's palsy with spontaneous resolution as is typical for this disorder." The additional evidence added to the record since the December 1996 rating decision includes a July 2012 private medical report, VA outpatient treatment records from July 1996 to July 2012, and results from a September 2012 VA examination. According to the July 2012 private medical report, the Veteran had a consultation for severe ptosis (drooping or falling eyelids) on the left side than right. The Veteran reported a history of Bell's palsy on the left side years ago when he was in service, and the private physician indicated that he "suspect[ed]" that is the reason for the marked asymmetry in the two brows. The private physician stated that the Veteran appeared to be an excellent candidate for improvement in vision with a blepharoplasty, levator advancement on both upper eyelids, and a left direct brow lift. VA outpatient treatment records dated July 1996 to July 2012 are absent for any complaints, treatment, or diagnosis of paralysis of the left seventh cranial nerve (Bell's palsy). In a November 2011 VA outpatient treatment note, the Veteran reported having Bell's palsy on the left side while in service, and questioned if he had any residuals since he occasionally drools from the left side. Upon physical examination testing, the VA staff physician noted no obvious facial weakness. At the September 2012 VA examination, the Veteran stated that after he was discharged from service, his left eye began drooping and has worsened since that time. He further added that the left side of his mouth droops and drools, and he has shaking of the hands. After physical examination testing, the VA examiner noted that the Veteran has bilateral drooping of the eyelids, left greater than the right, with no seventh nerve palsy appreciated. She noted that the September 1955 diagnosis of Bell's palsy, left facial, had been resolved. The VA examiner concluded that it is less likely as not that the Veteran's current claimed facial neurological symptoms are a progression of or related to Bell's palsy left treatment in service. Although the RO conducted a de facto reopening of the claim by affording the Veteran a VA examination, evidence that is both new and material has not been submitted. Cox v. Brown, 5 Vet. App. 95 (1993). The private medical report dated July 2012 and the VA outpatient treatment records from July 1996 to July 2012 are new, but they do serve to substantiate the claim. See Smith v. West, 12 Vet. App. 312 (1990) (holding that if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened); Morton v. Principi, 3 Vet. App. 508 (1992); Mingo v. Derwinski, 2 Vet. App. 51 (1992) (observing that evidence of a claimant's current condition is not generally relevant to the issue of service connection, absent some competent linkage to military service). The Board also finds the September 2012 VA medical opinion to be of no probative value because it does not raise possibility of substantiating the claim for service connection. As previously stated, the September 2012 VA examiner concluded that the Veteran's Bell's palsy had resolved, and the claimed facial neurological symptoms are less likely as not a progression of or related to Bell's palsy left treatment in service. Therefore, there is no current diagnosis of Bell's palsy, but rather only facial neurological symptoms. The September 2012 nexus opinion provided is a negative opinion, which cannot trigger a reopening of the claim. See Villalobos v. Principi, 3 Vet. App. 450 (1992) (noting that evidence that is unfavorable to a claimant is not new and material). As to the Veteran's personal statements asserting that his current paralysis of the left seventh cranial nerve (Bell's palsy) originated in service, these statements concerning causation are duplicative of statements made earlier by the Veteran. Also lay assertions of medical causation cannot serve as a predicate to reopen a claim. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Moray v. Brown, 5 Vet. App. 211, 214 (1993). In sum, the evidence received since the December 1996 rating decision does not constitute competent evidence tending to show that the Veteran has a current diagnosis of Bell's palsy that is attributable to his military service. As a result, the newly received evidence does not raise a reasonable possibility of substantiating the claim. Accordingly, the evidence received since the most recent final denial of the claim in December 1996 is not new and material, and reopening of the claim for service connection for paralysis of the left seventh cranial nerve (Bell's palsy) is not warranted. Until the evidence meets the threshold burden of being new and material to reopen the claim, reopening of the claim must be denied, and the merits-based standard of benefit of the doubt does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER New and material evidence not having been received, the appeal to reopen service connection for paralysis of the left seventh cranial nerve (Bell's palsy) is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs