Citation Nr: 1752392 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 08-29 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a nerve disorder of the face, to include as due to exposure to crude oil and herbicides in-service or as secondary to service-connected prostate cancer and radiation treatment. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel INTRODUCTION The Veteran had active service from February 1966 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) from the February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los, Angeles, California. The Veteran testified at a video teleconference hearing in November 2013. A transcript is of record. In April 2017, the Veteran was notified that the Veterans Law Judge (VLJ) who conducted his hearing is no longer with the Board. The Veteran was provided the opportunity to appear for another Board hearing, but no response was received. Pursuant to the letter, when no response is received within 30 days of the letter, the Board will assume no hearing is requested and proceed with adjudication. In June 2014, February 2016, and July 2017 the Board remanded this case for additional development. The Board finds there has been substantial compliance with its remand instructions. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required). FINDING OF FACT A nerve disorder of the face is not shown to have manifested in service or for years thereafter and is not shown to be the result of or aggravated by service-connected prostate cancer and radiation treatment thereof. The only medical opinions of evidence to address the etiology of the nerve disorder of the face weigh against the claim. CONCLUSION OF LAW The criteria for service connection of a nerve disorder of the face, to include as due to exposure to crude oil and herbicides in service or as secondary to service-connected prostate cancer and radiation treatment, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1116, 5107 (West 2014); 38 C.F.R. 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2017). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). 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 that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). For certain disabilities, such as organic diseases of the nervous system, service connection may be presumed when such disability is shown to a degree of 10 percent or more within one year of the veteran's discharge from active duty. 38 U.S.C.A. § 1101, 1112 (West 2014); 38 C.F.R. § 3.307, 3.309 (2017). Such a presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1113 (West 2014); 38 C.F.R. § 3.307 (2017). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all Veterans who served in Vietnam during the Vietnam Era. See 38 U.S.C.A.§ 1116 (f) (West 2014) and 38 C.F.R. § 3.307 (a)(6)(iii) (2017). The Veteran has verified service in Vietnam and therefore his exposure to herbicides has been conceded (see February 2010 rating decision). If a Veteran was exposed to a herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II or adult-onset diabetes mellitus), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309 (e). VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 -346 (1994); see also 61 Fed. Reg. 57586 -57589 (1996). Recently, VA amended the list of covered diseases presumed service-connected due to herbicide exposure as to include the conditions of all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Parkinson's disease, and ischemic heart disease. A new Note 3 to section 3.309(e) provides that "the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease." See 75 Fed. Reg. 52,202 -53,216 (Aug. 31, 2010), to be codified later at 38 C.F.R. § 3.309 (e). The diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year, after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994). In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). Factual Background Initially, the Board notes it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. The Veteran's service treatment records (STRs) are void of complaints or issues regarding his facial nerves or facial twitching. In June 1980, a private medical record indicated that the Veteran's cranial nerves were normal. A May 1997 private medical facility record indicated the Veteran had twitching and numbness of the left side of his face for the prior two days. In September 1998, a private medical facility record indicated the Veteran complained of numbness of his left eye and chin for the three weeks prior. He reported twitching and numbness. In February 2006, a VA medical center (VAMC) neurology note indicated the Veteran had complaints of left facial twitching. He presented with a five year history of left facial twitching, which had occurred more frequently over the past month. He reported the twitching occurred at night and awakened him from sleep. The twitching occurred daily and lasted several minutes to all day. He denied facial pain, visual changes, pain to the left eye, changes in salivation or speech, dysphagia, headaches, tinnitus or change in hearing, and change in taste. Upon examination, the Veteran was found to have prominent left facial twitching, which involved the left face below eye. He had mild proptosis of the left eye compared with the right. Sensation was diminished over the left cheek. The Veteran had an asymmetric smile, but no tongue deviation and examination of the rest of the cranial nerves were normal. In an MRI performed, the seven cranial nerves appeared grossly normal. The Veteran was assessed with left hemifacial spasm. The physician stated that it was unlikely, but possibly related to low serum calcium, diabetes, or thyroid dysfunction. It was also possible vascular compression of 7th cranial nerve, but due to the Veteran's allergy to contrast media with prior MRI, further tests were not performed. In October 2006, a VAMC neurology note indicated the Veteran had left facial spasm which was unchanged. Stress/anxiety was noted to increase the spasm. He was noted to have intermittent left facial and left lower lid twitching, which lasted for 10-15 seconds. No speech abnormality was noticed. In February 2007, a VAMC neurology note indicated the veteran had increase facial spasm. Stress/anxiety increased the spasm. The spasms were noted to be unresponsive to medication. Upon examination, he was found to have intermittent left facial and left lower lid twitching, which lasted for 10-15 seconds. No speech abnormality was noticed and the rest of cranial nerve exam was unremarkable. He was recommended for Botox injections. In August 2007, VA received a lay statement from an acquaintance of the Veteran who stated that he had known the Veteran for over 30 years. He stated that the Veteran had developed a facial tick - a nerve disorder that made his eye twitch - and that it did not seem to be getting better. In March 2008 the Veteran submitted a statement in support of claim which stated that his nerve disorder of the face was due to his constant exposure to crude oil. In July 2008, a VAMC neurology note indicated that the Veteran had left hemifacial spasm for the past 30 years, which previously responded to Botox injections. The Veteran presented with frequent left upper and lower spasm on exam, somewhat atypical in slower relaxation phase. The Veteran's examination was also atypical for facial weakness and decreased sensation on the left, which he reported had been slowly progressive over several years, and did not appear to be associated with Botox injections. His history was significant for multiple malignancies, including multi facial tumors, squamous cell carcinoma, and a history of radiation treatment to his face for acne. Overall, it appeared that he had a localized movement disorder that would likely benefit from further Botox injections. In August 2008, a brain MRI without contrast was performed as the Veteran had left hemifacial spasm/weakness/numbness with a history of facial tumors and radiation to the face. The impression was that there was no hemorrhage or recent infarct, there was mild microvascular ischemic changes of the cerebral white matter, but that MRAs of the brain and neck demonstrated no significant stenosis. In his September 2008 VA Form 9, the Veteran stated that his facial nerve disorder was due to his exposure to crude oil. A December 2009 VA examination determined that the Veteran had abnormality of the VII cranial nerve as evidenced by facial paralysis. The nerve was moderately paralyzed with the corresponding muscles showing active movement against gravity. The abnormal findings were positive facial asymmetry with shallow nasolabial fold of the left side of the face. The condition existed since 2005. The Veteran indicated he had uncontrolled left facial twitches, from which he had suffered one time a day. He reported the attacks lasted for 10 minutes and averaged 365 times per year. The neurological condition was described as involuntary facial twitching on the left side of the face. He reported that when the attacks occurred he had to stay in bed and was unable to do anything. There were no precipitating factors and the alleviating factor was Botox injection. The examiner found that the Veteran's facial nerve disorder was not a residual of his mini-stroke, but was unable to determine the cause of the facial twitches. In November 2012, the Veteran had follow-up with a VAMC neurology clinic. He reported his facial spasm was impacted by significantly more stressors since his last visit. He noted less of a response after his last Botox treatment. He did not note changes in facial weakness or asymmetry or any other adverse effect. The impression was the Veteran had facial weakness likely related to facial irradiation. In his November 2013 hearing, the Veteran testified that his facial nerve disorder was due to his exposure to crude oil while in-service. The Veteran also stated that he was exposed to Agent Orange, but was not sure if that was a cause of his facial nerve disorder. His representative clarified that the Veteran was contending that his facial nerve disorder was due to crude oil exposure. In January 2015, the Veteran presented to a VAMC neurology to establish care for hemifacial spasms. He had a past medical history for thyroid cancer, thyroidectomy and radioablation in 1974, colon cancer in 1995, and prostate cancer in 2007, status post radiation. It was noted he had radiation exposure history to his head and also had other concerning and unusual exposures beyond radiation associated with his thyroid cancer and external beam radiation treatment for prostate cancer. He reported having his tonsils removed at about 4-5 years old, but they "grew back" and instead of removing them, he had "radon tube" inserted into his nose (this was ~1949). He also underwent UV and external radiation treatment for acne at age 17 years old, ultimately receiving18 treatments. He reported exposure to crude oil and Agent Orange. The physician stated that given the Veteran's unique radiation exposure history to his head, it seemed plausible that his hemifacial spasm maybe related to radiation injury to his VII cranial nerve. He was recommended to resume Botox injections. In a January 2015 VA examination of his cranial nerves the Veteran reported uncontrolled left eye blinking that first started in 1990 with twitching under his left eye. He stated that it went away for a couple of years, but then came back worse. Since onset the Veteran stated that he had multiple evaluations without ever receiving an etiology for the blinking. Uncontrolled movement radiated from the top of left eyebrow, eye lids, left cheek and left submandibular musculature to neck. The Veteran received Botox treatment which did help. He also used artificial tears for years and ointment at night to prevent dry cornea condition. The examiner noted that May 2005 was the first documented VA record of the facial nerve condition. Upon examination, the Veteran's VII cranial nerve was found to be affected. He reported suffering from facial pain, numbness, difficulty swallowing, difficulty speaking, and increased salivation. The examiner noted that the Veteran had undergone several MRIs without any findings to explain the condition. The examiner stated that it was less likely than not that the Veteran's condition was incurred in or caused by crude oil exposure as he was unable to locate any evidence which would support the notion that the condition was associated or caused by crude oil exposure in the remote past. In a May 2016, the VA examiner provided an addendum opinion in which he concluded that it was less likely than not that the facial nerve disorder was due to or the result of the Veteran's service connected prostate cancer radiation therapy. The examiner stated that the Veteran's first reported facial symptoms in 1990 pre-dated his prostate cancer radiation treatment, which occurred in 2007. Furthermore, the examiner stated that the medical literature did not support the notion that radiation treatment for prostate cancer would affect only the seventh cranial nerve in the skull of the twelve cranial nerves. In September 2017, an addendum opinion from a VA examiner stated that the Veteran had hemi-facial spasm long prior to diagnosis or treatment of his prostate cancer, thus, the prostate cancer or its treatments did not cause the Veteran's spasms. The examiner also did not see evidence that the radiation treatment that the Veteran received for his prostate cancer could have resulted in worsening or aggravation of the spasms. The examiner explained that the radiation would have been delivered locally to the prostate, in a directed beam, and would not have been sufficient to irradiate the cranial nerves responsible for hemi-facial spasms. Further, the examiner stated that the diagnosis and causation statement in prior treatment notes actually opined that the hemifacial spasm diagnosis was likely related to radiation exposure, but not from the prostate cancer radiation. Thus, the examiner stated that it was less likely than not (less than a 50 percent probability) that the Veteran's prostate cancer, including its treatment, caused the Veteran's facial spasms or aggravated the facial spasms. The Veteran seeks service connection for his facial nerve disorder and has stated that it is due to his exposure to crude oil while in-service, as well as due to his radiation therapy for his service-connected prostate cancer. The Veteran has also been presumed to be exposed to herbicides. Thus, the Board has considered his claim on a direct, presumptive, and secondary basis. Direct service connection necessitates a finding that the Veteran's facial nerve disorder was related to an injury or disease incurred in service. The evidence of record does not support such a finding. As admitted by the Veteran and supported by the evidence of record, the Veteran did not have issue or complaints regarding his facial nerve while in-service. The first documented evidence of record of his complaints regarding his facial twitching was in May 1997, over forty-seven years after his separation from service. The passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). The Board also notes that the Veteran's treating provider in February 2006 related his facial twitching to low serum calcium, diabetes, or his thyroid dysfunction. In November 2012 a VAMC neurology clinic note related the Veteran's facial nerve disorder to his prior history of facial radiation. Again, in January 2015 a VAMC neurology note documented the Veteran's prior history of radiation exposure to his face and head and stated the Veteran's facial nerve disorder could plausibly be related to radiation injury to his VII cranial nerve. Importantly, none of the Veteran's providers stated or opined that the Veteran's facial nerve disorder could be or was related to his active service, or his exposure to crude oil while in-service. Furthermore, the January 2015 VA examiner found that that it was less likely than not that the Veteran's condition was incurred in or caused by crude oil exposure. Specifically, the examiner was unable to locate any evidence which would support the notion that the Veteran's condition was associated or caused by crude oil exposure in the remote past. The Board finds the January 2015 VA examiner's medical opinion highly probative to the issue of whether the Veteran's nerve disorder is related to his exposure to crude oil while in-service. The examiner possesses the necessary education, training, and expertise to provide the requested opinion. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The opinion was based on a review of the claims file and examination of the Veteran. The examiner's review of the Veteran's claims file consisted of his service treatment records and post-service medical evidence, and his contentions, upon which the examiner relied upon in giving his opinion. It is clear that the examiner took into consideration all relevant factors in giving his opinion. Significantly, the Veteran has not presented or identified any contrary medical opinion that supports the claim for service connection on a direct basis due to his exposure to crude oil in service. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The Board finds that the only medical opinion evidence of record shows that the Veteran's facial nerve disorder is not related to his exposure to crude oil while in-service. The Board has considered the Veteran's lay statements. Although the Veteran is competent to describe the observable symptoms of his facial nerve disorder, he is not competent to opine as to its etiology, as he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, his lay opinion that his nerve disorder was caused by exposure to crude oil while in active service does not constitute competent medical evidence and lacks probative value. In regards to the possibility that the Veteran's facial nerve disorder is related to his exposure to herbicides while in-service, the evidence of record also does not support such a finding. Facial nerve disorders are not among the listed conditions which are granted presumptive service connection for herbicides pursuant to 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). There must be competent evidence of record to suggest a connection to herbicide exposure. There is no such evidence in this case. In fact, none of the Veteran's medical providers have linked his facial nerve disorder to his exposure in-service to herbicides. Although the Veteran might have believed that his facial nerve disorder was related to exposure to herbicides while in-service, the record does not suggest the Veteran, who is a layperson, is competent to determine the etiology of his current facial nerve disorder. In regards to the Veteran's contention that his facial nerve disorder was related to his prostate cancer radiation therapy, secondary service connection requires a finding that that the current disability was either caused by or aggravated by a service-connected disability. In this matter, no such finding regarding the Veteran's facial nerve disorder and his prostate cancer or its treatment is warranted. Specifically, the evidence of record documents that the Veteran first had complaints of facial nerve twitching in May 1997. In his February 2006 VAMC neurology note he reported that his facial twitching had been present for the past five years. His prostate cancer therapy is documented to have occurred in 2007. Thus, as noted by the May 2016 VA examiner, the Veteran's facial nerve disorder is well-documented to have existed prior to his prostate cancer treatment. Furthermore, as stated by the VA examiner in May 2016, there was no medical literature that supported the notion that radiation treatment for prostate cancer would affect only the seventh cranial nerve in the skull. In the September 2017 addendum, a VA examiner again stated that as the Veteran's facial nerve disorder presented long prior to his diagnosis or treatment for prostate cancer, the cancer or its treatments did not cause the Veteran's spasms. Furthermore, the examiner stated that he did not see evidence that the Veteran's prostate cancer treatment could have resulted in a worsening or aggravation of the Veteran's facial nerve disorder, explaining that the prostate cancer radiation treatment was delivered locally to the prostate and would not have been sufficient to irradiate the cranial nerves responsible for hemi-facial spasms. Overall, the examiner opined that it was less likely than not that the Veran's prostate cancer, including its treatment, caused or aggravated the facial spasms. The Board finds the medical opinions of the May 2016 and September 2017 examiners highly probative to the issue of whether the Veteran's facial nerve disorder was related to his prostate cancer or treatment thereof. The examiners possess the necessary education, training, and expertise to provide the requested opinions. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The opinions were based on a review of the claims file, the Veteran's service treatment records, and post-service medical evidence, upon which the examiners relied in giving their opinions. It is clear that the examiners took into consideration all relevant factors in giving their opinions. Significantly, again, there is no contrary medical opinion that has been presented or identified which supports the claim for secondary service connection. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The Board finds that the only medical opinions of record show that the Veteran's facial nerve disorder was not caused or aggravated by his prostate cancer or treatment for prostate cancer. The Board has once again considered the Veteran's lay statements. Although the Veteran is competent to describe the observable symptoms of his facial nerve disorder, he is not competent to opine as to its etiology, as he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, his lay opinion that his nerve disorder was caused by exposure to radiation due to his service connected prostate cancer does not constitute competent medical evidence and lacks probative value. In sum, the claims file does not contain competent and credible evidence that the Veteran's nerve disorder of the face is related to service either on a direct, presumptive, or secondary basis. Accordingly, as the preponderance of the evidence is against the claim for service connection, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a nerve disorder of the face, to include as due to exposure to herbicides or crude oil while in-service or as secondary to service-connected prostate cancer and radiation treatment, is denied. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs