Citation Nr: 1325121 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 02-19 660 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for Bell's palsy, to include as secondary to service-connected eye disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran had active service from July 1971 to September 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In pertinent part of that rating decision, the RO denied the benefit sought on appeal. The Veteran testified before the undersigned Acting Veterans Law Judge in April 2003 and before a Decision Review Officer in May 2008. Transcripts of his hearings have been associated with the record. The matter on appeal was remanded for additional action in January 2010, November 2011and April 2013. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim, which has been reviewed in conjunction with this decision. FINDING OF FACT The preponderance of the competent evidence is against a finding that the Veteran's Bell's palsy had an onset during service or within the first year thereafter, or that it is otherwise related to active duty, to include as proximately due to his service-connected eye disability. CONCLUSION OF LAW The criteria for entitlement to service connection for Bell's palsy have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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); 38 C.F.R. § 3.159(b) (2011); 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 RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); 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 U. S. Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA 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, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. A November 2000 letter discussed the evidence necessary to support the Veteran's claim. The evidence of record was listed and the Veteran was told how VA would assist him in obtaining additional relevant evidence. He was invited to submit or identify pertinent evidence. Specifically, in a May 2006 letter, the Veteran was advised on what evidence was need to substantiate a claim on a secondary theory of entitlement. An August 2007 letter discussed the manner in which VA determines disability ratings and effective dates. Although the August 2007 notice was sent after the initial adjudication, the Board finds this error non-prejudicial to the Veteran. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). In this regard, the notice provided in the October 2006 letter fully complied with the requirements of 38 U.S.C. § 5103(a), 38 C.F.R. § 3.159(b), and Dingess, and after the notice was provided the case has been re-adjudicated, with most recently in a May 2013 supplemental statement of the case was provided to the Veteran. See Pelegrini II, supra; Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (a (supplemental) statement of the case that complies with all applicable due process and notification requirements constitutes a re-adjudication decision). The Board finds that the content of the notice fully 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. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim. With respect VA's duty to assist, the Board notes that identified records have been associated with the claims file. The claims file was reviewed by a VA examiner in May 2013, and the Board finds that the resulting opinion offered by that examiner is adequate with respect to the issue decided herein in that the review was performed by a neutral skilled provider who considered the Veteran's pertinent history prior to rendering a conclusion. The Board finds that the examination reports are adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The RO has substantially complied with the Board's January 2010, November 2011, and April 2013 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). With regard to the other VA examination reports of record, the Board had previously noted deficiencies in each of those reports, and they will not be discussed below. Neither the Veteran nor his representative has identified any additional evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that the RO has complied with the duty to assist requirements of the VCAA and the implementing regulations. As noted above, the Veteran also was afforded a hearing before the undersigned acting Veterans Law Judge (VLJ) during which he presented oral argument in support of his service connection claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2011) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issue on appeal during the hearing and specifically discussed the basis of the prior determination, the element(s) of the claim that were lacking to substantiate the claim for benefits, and suggested the submission of evidence that would be beneficial to the appellant's claim. Significantly, neither the appellant nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). For the foregoing reasons, it is not prejudicial to the Veteran for the Board to proceed to a final decision in this appeal. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. 38 C.F.R. § 3.303(d). For the showing of 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection, there must be (1) medical evidence of a 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability which is service connected; and (3) competent evidence of a nexus between the two. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. In this case, the Veteran seeks entitlement to service connection for Bell's palsy. He reports that he first experienced some facial numbness during his period of service when he was stationed in Thailand. He sought medical treatment, he was given antibiotics, and his symptoms subsequently resolved. He contends that his in-service symptomatology marks the onset of his Bell's palsy. In the alternative, he contends that his Bell's palsy is proximately due to his service-connected eye disability. As noted above, in order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus or relationship between the two. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) With respect to the existence of a present disability, element (1), the medical evidence reflects that the Veteran has current diagnoses of Bell's palsy affecting his right and left sides. See VA and private treatment records dated in December 1978 and onward, as well as a May 2013 VA examination report. With respect to in-service incurrence or aggravation of a disease or injury, the Veteran's service treatment records show do not show any complaints, treatment or diagnosis of Bell's palsy for either side of the Veteran's face. On the report of the Veteran's September 1975 examination prior to separation, the Veteran received normal head, face and neurologic evaluation. In addition, on the associated report of medical history, the Veteran specifically denied that he had had symptoms of neuritis or paralysis during his period of service. The first medical evidence of Bell's palsy comes in December 1978, which comes three years after the Veteran's separation from service. Those treatment records show that the Veteran sought treatment for symptoms of Bell's palsy on the right side for the past eight days. The medical evidence does not show that the Veteran complained of Bell's palsy affecting his left side until 1998. There is no evidence in the service treatment records or other medical evidence of record that demonstrates that the Veteran's Bell's palsy had an onset during his period of the service, or within the first year thereafter. Rather the first medical evidence of Bell's palsy comes in December 1978, more than three years after the Veteran's separation from service. 38 C.F.R. §§ 3.303, 3.307, 3.309. The Board has considered the Veteran's lay statement that he first experienced symptoms of numbness in his face during his period of service, he sought treatment in service for these symptoms and he was given antibiotics. See the May 2013 VA examination report. The Veteran is competent to report the onset numbness sensation in his face and report what treatment he was advised to take. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). In Barr v. Nicholson, the Court indicated that lay evidence was to be considered competent with regard to a disease with "unique and readily identifiable features" that was "capable of lay observation." Id., 21 Vet. App. at 309. Notably, the diagnosis of a neurologic disorder, such as Bell's palsy, requires diagnostic testing and medical expertise to determine its very nature, which extends beyond capabilities of a lay person. Here, the May 2013 VA examiner found that the Veteran's reported history of in-service facial numbness and treatment with antibiotics was not consistent with a diagnosis of Bell's palsy. The examiner noted that Bell's palsy is not a condition that is treated with antibiotics. The Veteran's lay statements about in-service symptoms and treatment are not sufficient to support a later diagnosis of Bell's palsy. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board also acknowledges that the VA examiner in the report of a March 2010 VA neurologic examination stated that the Veteran had Bell's palsy in service, when in fact Bell's palsy was not noted in the Veteran's service treatment records. It appeared that the VA examiner failed to review the claims folder in conjunction with the examination report. Further, the examiner found that the Veteran did not currently suffer from Bell's palsy and that there are no residuals of the disorder; however, she did not reconcile her opinion with the lay evidence of Bell's palsy residuals from the May 2008 RO hearing. The Board found that the March 2010 VA examination report was inadequate and bears no probative value in this matter. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran's in-service and post-service treatment records are replete with complaints and treatment for various eye problems, including conjunctivitis and punctate keratitis, and the Veteran has been service connected for bilateral eye disability, identified as dry eye syndrome. The Veteran asserts that his Bell's palsy is related to his in-service eye problems, to include as secondary to his service-connected eye disability. Although in-service eye injuries and current disability have been established, as noted above, this is not sufficient to warrant service connection. There still must be competent evidence to establish element (3), a causal relationship between the present disability and the eye injuries incurred or aggravated during service, to include proximately caused by his service-connected eye disability. Here, the record lacks medical evidence establishing a possible relationship between the Veterans's Bell's palsy and in-service eye injuries or his service-connected eye disability. The May 2013 VA examiner concluded that the Veteran's Bell's palsy was less likely than not incurred in or caused by in-service eye injuries. The examiner supported this medical conclusion by noting the lack in-service treatment for Bell's palsy during the Veteran's period of service or treatment for a condition that the medical literature demonstrates likely causes Bell's palsy. In this regard, the VA examiner noted that a review of the medical literature showed that herpes simplex virus activation has become widely accepted as the likely cause of Bell's palsy in most cases, and herpes zoster is the second most common viral infection that is associated with facial paralysis. There was no indication in the Veteran's service treatment records that he had either of these conditions during his active service. The VA examiner also noted that while the Veteran was treated for conjunctivitis (which is considered secondary to his service-connected eye disability), the etiology of the Veteran's conjunctivitis was not diagnosed as due to herpes virus. With regard to a possible etiology to the Veteran's service connected eye disability, the May 2013 VA examiner opined that it was less likely than not that his Bell's Palsy was proximately due to his service-connected disability. The VA examiner supported his medical conclusion by noting a review of the medical evidence of record and the current medical literature did not support a proximate link between the Veteran's Bell's palsy and his service-connected eye disability. There is no evidence of record that supports the finding that the Veteran's Bell's palsy was caused or aggravated by his service-connected eye disability. See 38 C.F.R. § 3.310. The Board finds it highly pertinent that there is no contrary medical opinion of record. Indeed, the Veteran has not provided any objective evidence demonstrating a relationship between his current headache disorder and his military service. The Veteran has had ample opportunity to secure medical evidence in his favor and submit the same to VA. He has not done so. See 38 U.S.C.A. § 5107(a) [it is a claimant's responsibility to support a claim for VA benefits]. The Board has considered the Veteran's assertions relating his Bell's palsy to his in-service eye injuries (which resulted in his service-connected eye disability). However, the Veteran is not a medical professional, and therefore, his beliefs and statements about medical matters do not constitute competent evidence regarding matters that go beyond lay observation, such as to assess the etiology of a neurologic disorder. See Jandreau 492 F.3d at 1377 (Fed. Cir. 2007) (under certain circumstances, lay person is competent to identify a simple medical condition). The question of etiology of headache disorder extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. The Veteran lacks the medical expertise to diagnose the condition and to relate its etiological origin to in-service eye injuries. See Bostain v. West, 11 Vet. App. 124, 127 (1998). Therefore, to the extent, his statements attempt to show an etiological connection between his current diagnosed disorder and his in-service eye injuries (or service-connected eye disability); this is simply not competent or persuasive evidence. Simply put, there is no medical evidence on file linking his Bell's palsy to his period of service or service-connected disability. The Veteran is not a medical professional competent to provide such a link by mere statements alone. The Federal Circuit recently held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies to those conditions recognized as chronic under 38 C.F.R. § 3.309(a), which includes organic diseases of the nervous system. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the Veteran has not reported any continuity of symptoms with respect to Bell's palsy since his separation from service. The Veteran denied any neurologic disorders at the time of his separation from service. The record also lacks any documentation of neurologic problems until 1978, more than three years after his separation from service. Therefore, service connection based on continuity of symptomatology is not warranted. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran's Bell's palsy had an onset in service or is otherwise related to his period of service, to include in-service eye injuries or his service-connected eye disability. The evidence in this case is not so evenly balanced to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran's claim, and it must be denied. ORDER Entitlement to service connection for Bell's palsy is denied. ____________________________________________ N. RIPPEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs