Citation Nr: 1410124 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 11-19 779 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for degenerative joint disease (DJD) of the lumbar spine. 2. Entitlement to service connection for residuals of Bell's palsy. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from June 1987 to July 1987 and from February 2003 to April 2004. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied service connection for a lower back condition and denied service connection for Bell's palsy. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the file on the "Virtual VA" system to ensure a complete assessment of the evidence. The Veteran testified before the undersigned in a December 2012 videoconference hearing, the transcript of which is included in Virtual VA. Subsequent to the issuance of the June 2011 Statement of the Case, the Veteran submitted additional evidence in December 2012, for which a waiver of initial RO consideration was provided. FINDINGS OF FACT 1. The Veteran has currently diagnosed DJD of the lumbar spine, confirmed by x-ray findings. 2. Symptoms relating to DJD of the lumbar spine have been continuous since service separation. 3. The Veteran has residuals of Bell's palsy, including weakness of the right side of the face. 4. Residuals of Bell's palsy are not etiologically related to service, to include environmental conditions and physical and emotional stress that the Veteran may have been exposed to while serving in Iraq. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for DJD of the lumbar spine have been met. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. 2. The criteria for service connection for residuals of Bell's palsy have not been met. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As the Board is granting service connection for DJD of the lumbar spine, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). As for the issue of service connection for residuals of Bell's palsy, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between a veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). An April 2009 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. This letter also informed the Veteran of disability rating and effective date criteria. The Veteran has had ample opportunity to respond and supplement the record. With regard to the duty to assist, service treatment records and post-service VA treatment records have been secured, to include the December 2012 Board hearing transcript. Further, the RO arranged for a VA examination in May 2011. For reasons discussed in detail below, the Board finds the May 2011 VA examination to be adequate. The opinion was provided by a qualified medical professional and was predicated on a full reading of all available records and the Veteran's history and complaints. The examiner also provided a detailed rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran has not challenged the adequacy of the examinations obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Service Connection Law and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The condition of DJD (arthritis) is considered a "chronic disease" as listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Further, although bulbar palsy is considered a chronic disease under 38 C.F.R. § 3.309(a), Bell's palsy is not. See Dorland's Illustrated Medical Dictionary 912 (32nd ed. 2012) at pgs. 1365-1366 (Bell's palsy, defined as: "unilateral facial paralysis of sudden onset, due to lesion of the facial nerve and resulting in characteristic distortion of the face." Compare to Progressive Bulpar Palsy, defined as: "progressive paralysis and atrophy of the muscles of the lips, tongue, mouth, pharynx, and larynx due to lesions of the motor nuclei of the lower brainstem. It is a chronic, generally fatal disease with onset usually in late adulthood"). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for DJD of the Lumbar Spine The Veteran contends that his lumbar spine disorder began in service and has been continuous since service separation. Specifically, he maintains that he was hit by improvised explosive devices (IEDs) blasts during his service in the Persian Gulf War. Further, the Veteran has stated that his duties, including operating heavy equipment, changing tires on trucks, and climbing in and out of machinery, contributed to his lumbar spine disorder. See May 2011 VA examination report and December 2012 Board Hearing Transcript at pg. 4-5. Initially, the Board finds that the Veteran has a diagnosis of DJD of the lumbar spine, confirmed by x-ray findings. See May 2011 VA spine examination report. Next, the Board finds that, although DJD of the lumbar spine was not chronic in service, the evidence is in equipoise as to whether symptoms of DJD of the lumbar spine were continuous since service separation. During the December 2012 Board hearing, the Veteran reported that he experienced low back pain after being hit by IED explosions and while working on heavy machinery during service. He testified that he was given anti-inflammatory medication and told to return to work. See December 2012 Board Hearing Transcript at pg. 22-23. The Veteran has also stated that he did not seek medical care in service because he did not want other service-members to think he was avoiding his duties or that he was too scared to return on patrol. See Veteran's statement in July 2011 VA Form 9. A November 2008 post-service VA treatment record reflects that the Veteran complained of a two year history of constant lower back pain (i.e., beginning in approximately 2006, and approximately two years after service separation). During the December 2012 Board hearing, the Veteran and his spouse both testified that during the year following service, the Veteran complained of back pain. The Veteran further stated that he purchased four different mattresses in efforts to alleviate his symptoms. The Veteran has also stated that he self-treated the low back pain with over-the-counter medication and, after the pain continued to worsen, sought medical treatment. See Veteran's February 2010 (notice of disagreement) and July 2011 (VA Form 9) statements. Upon review of all the evidence of record, both lay and medical, the Board finds the statements regarding continuous symptoms of low back pain by the Veteran and his spouse to be credible and consistent with other evidence of record. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for DJD of the lumbar spine, based on continuous symptoms since service separation, is warranted. 38 C.F.R. § 3.102. Service Connection for Bell's Palsy The Veteran contends that residuals of Bell's palsy are a result of environmental conditions and physical and emotional stress that he was exposed to while serving in Iraq. The Veteran submitted a statement from a fellow service-member who stated that he had treated the Veteran during service for weakness, nausea, muscle cramping, and dehydration. In a November 2005 VA treatment record, the Veteran complained of facial paralysis following a severe headache the previous day. The Veteran was diagnosed with right facial paralysis, possible Bell's palsy. Follow-up VA treatment notes showed that the Veteran had partially recovered and was felt that he would likely have a full recovery. The Veteran's most recent VA speech pathology treatment notes reflect that he continues to have lip weakness with slight facial droop. See March 2011 VA treatment note. Upon review of the evidence of record, the Board finds that none of the VA treatment notes currently of record provide an opinion as to the etiology of the Veteran's Bell's palsy. As noted above, the Veteran served in combat during the Persian Gulf War (operation Iraqi Freedom) from February 2003 to April 2004. See DD Form 214. Service connection may be granted to any Persian Gulf veteran suffering from a chronic disability resulting from an undiagnosed illness or combination of undiagnosed illnesses which became manifest either during active duty in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent or more within a presumptive period following service in the Southwest Asian Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317. In a May 2011 VA examination report, the VA examiner noted that Bell's palsy met the criteria for a diagnosable, chronic multi-symptom illness with a partially explained etiology. As such, because the Veteran's Bell's palsy is not an undiagnosed illness, service connection under 38 C.F.R. § 3.317 is not warranted. Further, the Board finds that the evidence of record weighs against a finding that residuals of Bell's palsy are related to service, to include environmental conditions and physical and emotional stress that the Veteran was exposed to while serving in Iraq. The evidence includes a May 2011 VA examination report. The VA examiner reviewed the claims file, to include service treatment records, VA treatment records, and the Veteran's statements. The examiner interviewed the Veteran and also conducted a physical examination. The examiner noted that the Veteran had a diagnosis of Bell's palsy with minimal right-sided facial weakness. Further, the VA examiner noted that the most common disease of the facial nerve is Bell's palsy, which was noted to affect men and women more or less equally and occurred at all ages and at all times of the year. Bell's palsy was also noted as being idiopathic, inflammatory, or a superimposed viral disorder which was usually self-limiting. In the Veteran's case, the VA examiner noted that the Bell's palsy was an acute event that occurred in 2005 after service separation and was less likely than not a remote effect of his environmental exposure during service because, as noted above, it was an acute event with self-limiting course. The Board finds that May 2011 VA medical opinion to be highly probative on the question of a possible nexus to service. The Board has also considered the Veteran's statements asserting a nexus between residuals of Bell's palsy and service, to include environmental, emotional, and physical factors during service. While the Veteran is competent to report symptoms as they come to him through his senses, Bell's palsy is not the type of disorder that a lay person can provide competent evidence on questions of etiology. See Layno, at 465 (competent lay evidence is evidence not requiring that the proponent have specialized education, training, or experience, but is provided by a person who has knowledge of facts or circumstances and conveys matter that can be observed and described by a lay person); see also Rucker, at 74 (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). Bell's palsy is a medically complex disease process because of its possible multiple etiologies, requires specialized testing to diagnose, and manifest symptomatology that may overlap with other disorders. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis). Further, the etiology of Bell's palsy is a complex medical etiological question involving internal and unseen system processes unobservable by the Veteran. In sum, the weight of the competent and probative evidence demonstrates no relationship between the Veteran's current residuals of Bell's palsy and service. The Board has also reviewed an internet article from Wikipedia submitted by the Veteran regarding Bell's palsy. Normally, medical articles or treatises can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). The Board has considered and weighed such evidence, but finds that the internet article is less probative than the specific medical opinion provided by the May 2011 VA examiner because the VA examiner's opinion was based on a history more specific to this Veteran; that is, the VA medical opinion of record directly addresses the facts and medical history of the Veteran's Bell's palsy and following residuals. The submitted general internet article does not address the facts that are specific to the Veteran's case, and does not tend to establish a causal relationship between service exposure and the Veteran's Bell's palsy. For these reasons, and upon review of all the evidence of record, the Board finds that a preponderance of the evidence is against the claim for service connection for residuals of Bell's palsy, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for DJD of the lumbar spine is granted. Service connection for residuals of Bell's palsy is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs