Citation Nr: 1323584 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 02-14 564 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUE Entitlement to an increased (compensable) evaluation for Bell's palsy of the left side. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran had active service from April 1969 to March 1971. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2002 rating decision of the Louisville, Kentucky VA RO, which denied an increased (compensable) evaluation for Bell's palsy of the left side. In April 2004, the Board denied the Veteran's claim for an increased (compensable) rating for Bell's palsy of the left side. He then appealed to the United States Court of Appeals for Veterans Claims (Court). In an October 2006 order, the Court vacated the Board's April 2004 decision and remanded the matter to the Board for readjudication. In May 2007, the Board remanded the claim for further development. In May 2009, the Board again denied the Veteran's claim of entitlement to an increased rating. The Veteran once again appealed to the Court. A Joint Motion for Remand was submitted in February 2010, and in February 2010 the Court issued an order granting the motion and the matter was remanded to the Board for readjudication consistent with the motion. In August 2010, the Board remanded the case for further evidentiary development. A supplemental statement of the case (SSOC) was issued in May 2012. During the course of the appeal, the Veteran has pursued claims of secondary service connection, in particular claims for disabilities thought to be secondary to the service-connected Bell's palsy. Service connection has been granted for a dysthymic disorder and epiphora/dry eye syndrome as secondary to Bell's palsy. The ratings for these secondary disabilities have not been developed for appellate review. Most recently, the Veteran has argued that service connection is now warranted for tinnitus and headaches that started in service. These claims are referred to the agency of original jurisdiction (AOJ) for appropriate adjudicatory action. FINDING OF FACT The Veteran previously experienced Bell's palsy, but there has been no residual loss of facial muscle function due to loss of innervation by the 7th cranial nerve. CONCLUSION OF LAW The criteria for a compensable rating for Bell's palsy of the left side have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.124a, Diagnostic Code 8207 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013). See also 38 C.F.R. §§ 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate 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); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of a letter dated in June 2001 from the RO to the Veteran, which was issued prior to the RO decision in February 2002. Additional letters were issued in June 2007, July 2008, and December 2010. Those letters informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Consequently, those letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this rating issue. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. The Board is unaware of any outstanding evidence or information that has not already been requested. The Veteran has been afforded VA examinations on the issue decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examinations were conducted by medical professionals who reviewed the medical records, solicited history from the Veteran, and examined the Veteran. The reports include all that is necessary to rate the disability. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Background By a rating action in December 1986, the RO granted service connection for Bell's palsy, left side, by history; a 0 percent disability rating was assigned, effective June 25, 1986. In a statement dated in August 2000, the Veteran requested an increased rating for the symptoms associated with his Bell's palsy. Submitted in support of his claim were a number of private treatment records dated from February 1980 to March 2008. The records document the Veteran's complaints of numbness, headaches, left eye problems, and left ear pain. None of the records attributed the Veteran's complaints to Bell's palsy, or contained any diagnosis of Bell's palsy. Of record is the report of a VA compensation examination conducted in December 2000; at that time, it was noted that the Veteran's private medical records were reviewed. The Veteran reported that he suffered an episode of Bell's palsy affecting the left seventh cranial nerve, which resolved spontaneously without any medical intervention; the examiner noted that that was the normal course for Bell's palsy. The Veteran also complained of some mild left eye upper lid twitching, but did not complain of any loss of sensation. He did not complain of any difficulty swallowing. He had no dizzy spells, headaches, fainting, loss of consciousness, balance abnormalities, weakness, or speech abnormalities. He had not had any subsequent episodes of Bell's palsy. Testing of the cranial nerves revealed normal smell. There were normal visual fields to confrontation. Pupils were three millimeters, reactive to light and accommodation. Fundi were benign. Cranial nerves III, IV, and VI revealed normal extraocular movements. There was no evidence of ptosis or nystagmus. Cranial nerve V revealed normal facial sensation and normal masseter movement and strength bilaterally. Cranial nerve VII revealed normal facial movement and normal ability to bite and blow out cheeks bilaterally. Cranial nerve VIII showed that hearing was within normal limits bilaterally. Cranial nerves IX and X revealed normal gag reflex and normal palate movement. Swallowing was normal. Cranial nerve XI revealed good shoulder elevation bilaterally. Normal sternocleidomastoid function was present. Cranial nerve XII revealed normal tongue bulk and strength without evidence of fasciculations. The Veteran was diagnosed with past history of Bell's palsy, spontaneously resolved without evidence of sequelae. The Veteran was afforded a second VA examination in December 2008. The Veteran's medical record was reviewed. He reported that after the Bell's palsy, he had several problems with his face. He reported that he could not sleep on the left side of his face because he would experience numbness. He had constant tenderness in the left ear. He had poor vision in his left eye, and felt as if somebody was constantly opening his left eye. He also had frequent redness of the left eye. He also had a headache that developed after the Bell's palsy. The Veteran noted that the headaches typically started in the left eye, then radiated to the left jaw and down behind his left ear. He denied any problems on the right side. There was no focal weakness or numbness in the extremity. On examination, his pupils were two millimeters, equal and reactive. Extraocular movements were intact. There was no nystagmus, and no significant conjunctivae were noted in the left eye. His face was symmetrical. The examiner did not appreciate palsy of the left seventh cranial nerve. The Veteran was able to raise his eyebrows symmetrically and squeeze his eyes symmetrically. He smiled symmetrically. There was no dysarthria. His visual field was full. His pinprick and temperature examination revealed decrease on the left side in the left check and left lower jaw. The examiner's diagnosis was that the Veteran suffered from Bell's palsy on the left side during service and that it apparently had resolved. The examiner explained that on neurological examination, she did not appreciate any residual seventh cranial nerve palsy. The Veteran's complaints of left facial numbness when he slept on his left side, left ear tenderness, poor left vision, and headaches on the left side were noted. The Veteran's complaint that he felt as if someone was constantly opening his left eye with frequent redness in the left eye was also noted. The examiner opined that the Veteran's complaints were not common consequences of Bell's palsy, especially as she did not see any residual of seventh cranial nerve palsy on examination. The Veteran was afforded a cranial nerves examination in December 2010. At that time, the Veteran stated that he continued to have daily left-sided headaches that involve his left eye and posterior left ear; he described the headaches as mild to moderate in intensity. The Veteran also reported twitching of the left lower eyelid and dryness of the left eye with reduced tearing of the left eye and redness. He reportedly "bites" the left side of his tongue daily. The Veteran reported intermittent numbness of the left side of his face several times a week that is precipitated by pressure. It was further reported that he has intermittent left facial pain. The Veteran reported difficulty chewing. Examination of cranial nerve V was completely normal, except for decreased light touch to the forehead and cheek on the left side. Examination of cranial nerve VII revealed weakness of eyebrow lifting, forehead wrinkling, smiling, and tearing on the left side. It was noted that the Veteran worked as a school custodian and was currently employed; he had been employed for more than 20 years. The pertinent diagnosis was Bell's palsy, left side; it was noted that this condition caused decreased concentration, vision difficulty and pain. The examiner noted that the Veteran's sleep was moderately affected by numbness and pain in the left side. The examiner stated that the Veteran had classic symptoms of the residuals of 7th cranial nerve neuritis, twitching of the eyelid, biting of left side of the tongue. The examiner also stated that the Veteran had current demonstrable subtle residual physical changes of a left 7th cranial nerve palsy. The examiner noted that those symptoms have been continuous since the onset of the Veteran's Bell's palsy. The examiner observed that the medical neurological literature accepts that symptoms such as this Veteran describes, can be long-term residuals of a left 7th cranial nerve palsy. The examiner noted that the overall impairment of all these symptoms taken together was moderate. An Audiological examination was conducted in February 2011; at that time, the Veteran stated that he had headaches and facial numbness on the left side when he sleeps on that side. He reported ear infections in both ears typically associated with a head cold. Tinnitus is in the left ear only and it gets so loud that it interferes with sleep. The Veteran stated that he was treated for Bell's palsy in 1971; he reported that the received electrical treatment for the Bell's Palsy and has since had problems with numbness and functioning on the left side of his face. The Veteran also had a knot on the left mastoid. The Veteran reported the onset of tinnitus toward the end of military service; he stated that the headaches started at the same time. The pertinent diagnoses were sensorineural hearing loss and subjective tinnitus. The examiner stated that tinnitus was less likely as not caused by or a result of Bell's palsy; the examiner observed that the Veteran had normal hearing at induction and separation from service with no substantial decreases in threshold noted. On the occasion of a VA examination in April 2012, the Veteran indicated that he initially had some drooping of his face and difficulty closing the eye; evidently, the majority of these symptoms resolved. In addition to the drooping of his face and difficulty closing the eye, the Veteran stated that he had a little bit of numbness in the left portion of his face. After he left the service, he reported having had difficulty with alcohol and began having headaches. After first, he felt that the headaches were secondary to hangover; however, these headaches continued. The Veteran described constant headaches for the last few decades, occurring on a daily basis. It was noted that the majority of these symptoms seemed to be on the left side. He also stated that he had a knot behind his ear on the left side that causes him pain. The Veteran also described some occasional nausea, but no emesis; he did not have any sensitivity to sound and light with those headaches. At the current time, he was not taking any medications for the headaches because he has some liver dysfunction and he was told that the medications may affect his liver. It was noted that he had some other chronic pain issues for which he takes Tramadol and he does state that this helps his headaches some. His headaches typically do not have any additional manifestations such as visual loss, vertigo, weakness or paresthesia. On examination, cranial nerves II through XII were intact except for some subjective decreased sensation on the left portion of his face compared to the right to light touch and pinprick. The examiner sated that, from the Veteran's history, it appeared that he may have suffered from cranial nerve palsy involving the V and VII cranial nerves. At the current time, he does not have any apparent residual from the VII cranial nerve involvement (Bell's palsy). He did have some subjective decreased sensation of his face, which could be secondary to a concomitant V cranial nerve dysfunction. Per his history, his headaches occurred at least a year after the event and the examiner opined that it is unlikely that his headaches are related to cranial nerve palsy. With regard to his tinnitus, the examiner stated that it was his belief that since this occurred later that it was unlikely secondary to his cranial nerve palsy. The examiner observed that the Veteran has complained in the past of some twitching in his face after healing from a cranial nerve injury involving cranial nerve VII on occasion. The examiner stated that there will be some aberrant regeneration of the nerve and resulting fasciculation's and twitching, and this may be what the Veteran was complaining of. With regards to the twitching, he noted that this was as likely as not related to residual from his cranial nerve VII injury. The examiner stated that he did not observe any fasciculations or twitching on examination; however, the symptomatology and the occurrence are variable. III. Analysis Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. Part 4 (2012). 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history, and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the entire recorded history, and that each disability must be considered from the point of view of the Veteran's working or seeking work. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is to be assigned. The Veteran's Bell's palsy of the left side has been rated under 38 C.F.R. § 4.124a, Diagnostic Code 8207. Under Diagnostic Code 8207, a 10 percent rating is for application when there is incomplete, moderate paralysis of the seventh (facial) cranial nerve, a 20 percent rating is for incomplete, severe paralysis; and a 30 percent evaluation for paralysis that is complete. These ratings are to be assigned "[d]ependent upon [the] relative loss of innervations of facial muscles." Diagnostic Code 8207. (Where the schedule does not provide a 0 percent evaluation for a diagnostic code, a 0 percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2012).) The Board notes that words such as "moderate" and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6 (2012). Although the words "moderate" and "severe" are not defined in VA regulations, "moderate" is generally defined as "of average or medium quality, amount, scope, range, etc." and "severe" is defined as "extremely intense." See Webster's New World Dictionary, Third College Edition (1988), pgs. 1038, 871, and 1071. The record reflects that the veteran does not demonstrate sufficient incomplete paralysis to warrant a compensable rating for residuals of Bell's palsy. In fact, no degree of loss of facial muscles function has been evident. Significantly, in December 2010, the VA examination noted that cranial nerve V revealed normal facial sensation and normal masseter movement and strength bilaterally; cranial nerve VII revealed normal facial movement and normal ability to bite and blow out cheeks bilaterally. Following the more recent examination in April 2012, the examiner opined that the Veteran's complaints were in fact unrelated to cranial nerve palsy; he also opined that it is unlikely that the tinnitus was secondary to his cranial nerve palsy. While the Veteran has reported twitching , the examiner noted that he did not observe any twitching or fasciculations on the examination. It is noteworthy that the VA examiner observed that the Veteran's report of intermittent numbness of the left side of the face is subjective. Two neurological examinations conducted by different examiners concluded that the Veteran's cranial nerve examination was normal and left facial muscle weakness was not present. The twitching and fasciculations, if present, have not been shown to adversely affect facial muscle function, which is the criterion on which a 7th cranial nerve disability is rated. In sum, the evidence indicates the veteran's Bell's palsy does not meet the criteria for an increased (compensable) rating. For this reason, his claim for a compensable rating must be denied because the preponderance of the evidence is unfavorable--meaning there is no reasonable doubt to resolve in his favor. See 38 C.F.R. § 4.3. Even though the December 2010 examiner referred to moderate disability, it is clear that the examiner was not referring to 7th cranial nerve damage, but to other problems. Because the only disability rating question before the Board is the rating of the service-connected 7th cranial nerve, and no other nerve or secondary issues, and because it has been made clear through the years that the Bell's palsy resolved and that there has been no clinically observed dysfunction of the muscles affected by the 7th nerve, a compensable rating is not warranted. (There have been references to damage to the 5th nerve, but it is important to point out that any 5th nerve impairment has not been service connected.) The Board also finds that evidence does not show an exceptional or unusual disability picture as would render impractical the application of the regular schedular rating standards. See 38 C.F.R. § 3.321 (2012). The current evidence of record does not demonstrate any 7th cranial nerve dysfunction with regard to the facial muscles, which is how this disability is to be rated. 38 C.F.R. §§ 3.321, 4.124a (Diagnostic Code 8207). The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations, and the Board is obliged to rate the disability under the specific Diagnostic Code identified for this disability. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2012). In this case, the Veteran does not experience any residual 7th nerve dysfunction due to the Bell's palsy that he had in service. 38 C.F.R. §§ 4.10, 4.40. Examiners have specifically noted that he has no discernible sequelae. Therefore, given the lack of evidence showing 7th nerve disability not contemplated by the rating schedule, the Board concludes that a remand to the RO for referral of this issue to the VA Central Office for consideration of an extraschedular evaluation is not warranted. ORDER A compensable rating for Bell's palsy of the left side is denied. _______________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs