Citation Nr: 1329430 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 92-18 623 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a disorder manifested by left-sided facial weakness. REPRESENTATION Appellant represented by: Kenneth H. Dojaquez, Attorney- at-law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran had active service from April 1974 to October 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA), which denied, amongst other issues, service connection for left-sided facial weakness. Jurisdiction now lies in the Atlanta, Georgia RO. In October 2010, the Veteran testified at a Central Office (CO) hearing before the undersigned Veterans Law Judge VLJ. A transcript of that hearing is of record and associated with the claims folder. In June 2011, the Board remanded the instant claim for further development. In February 2013, the Veteran appointed a new attorney as the representative in her claim. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required on her part. REMAND The Veteran claims that service connection is warranted for left-sided facial weakness. She has been awarded service connection for allergic rhinitis and left ear hearing loss. She maintains that as a result of these conditions, she has left-sided facial weakness. A review of the record has shown that the Veteran has been diagnosed with Bell's Palsy, cerebrovascular accident (CVA) and multiple other conditions as the cause of her left-sided facial weakness. Other physicians have indicated that she does not have left-sided facial weakness. In February 2012, the Veteran underwent a VA neurology examination. During that examination, the entire record was evaluated and the examiner stated that the Veteran's left-sided facial weakness first occurred in 1991, approximately 7 years after service. He opined that it was less likely as not that the Veteran's mild left-sided facial weakness was caused by service or her service related respiratory conditions or infections. However, it was eventually found during a VA examination of that same month that the Veteran had allergic rhinitis, allergy induced asthma, and that her allergies, are at least as likely as not due to her active service. It was also determined that the Veteran's left ear hearing loss (mixed hearing loss) was related to service. A VA audiologist indicated that at the time of his examination of the Veteran, her face appeared asymmetrical with her left side demonstrating a clearly observable weakness. The Veteran stated that she believed the left-sided facial weakness to be related to her sensitivity to sounds. She also related that her allergist told her it was Bell's Palsy. The audiologist strongly recommended that the Veteran be seen by an ENT specialist to evaluate the Veteran's mixed hearing loss and determine the nature of her left-sided facial weakness. The Veteran's attorney stated that there was an August 1999 finding by an ENT specialist, Dr. A., opining that the Veteran's allergies were resulting in Eustachian tube dysfunction which was the primary cause of the Veteran's cranial nerve symptoms. However, a review of the record did not show that Dr. A's opinion attributed these findings to the Veteran's left-sided facial weakness. He only opined that the Eustachian tube dysfunction was the result of the Veteran's allergies; he did not relate cranial nerve problems or left-sided facial weakness to the Eustachian tube dysfunction or to the Veteran's allergies. In any event, the February 2012 findings of left-sided facial weakness by the VA audiologist, prompted the audiologist to indicate that a specialist opinion should be sought. Additionally, although the neurologist at that time indicated that the Veteran's left-sided facial weakness was not due to service or respiratory conditions or infections in service, the neurologist did not address secondary service connection as the etiology for the Veteran's left- sided facial weakness as secondary to any of her service- connected disabilities or as aggravated by any of those disabilities. Fulfillment of the statutory duty to assist includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). This duty also includes the need to provide a VA examination by a specialist, when recommended. Hyder v. Derwinski, 1 Vet. App. 221 (1991). In light of the February 2012 statement by the VA audiologist indicating that the Veteran warrants an ENT examination in connection with this claim, this specialty examination is warranted. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any new medical treatment records, VA or non-VA, that may have come into existence since the time the claims file was last updated by the RO. 2. A VA ENT specialty examination should be scheduled to determine the nature and etiology of the Veteran's left-sided facial weakness. All indicated studies should be performed. The examiner should provide an opinion indicating whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's left-sided facial weakness is caused by or has been aggravated by her service- connected disabilities to include, allergic rhinitis (claimed as respiratory diseases to include sinusitis, rhinitis, allergies, and respiratory infections) and left ear hearing loss (mixed hearing loss). If it is determined that left- sided facial weakness is not caused by these aforementioned disabilities, but that aggravation beyond the natural progression of the left-sided facial weakness exists based on one or more of these disabilities, the examiner should be asked to identify the baseline level of severity of the symptoms prior to aggravation and the current level of severity of symptoms due to service- connected aggravation. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. 3. Following completion of the above, the claim should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and her representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The claim should be returned to the Board as warranted. The Veteran has the right to submit additional evidence and argument on the matter or 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 of Veterans' Appeals 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). _________________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).