Citation Nr: 21014199 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 11-17 078 DATE: March 11, 2021 REMANDED Entitlement to a rating greater than 10 percent for service-connected Bell’s palsy, to include entitlement to a separate rating for a residual eye condition and entitlement to an extraschedular rating, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1977 to May 1979. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for Bell’s palsy and assigned an initial 10 percent rating. The Veteran disagreed with the initial 10 percent rating. In December 2015, the Board remanded this matter for a new examination to address all symptoms of the Veteran’s Bell’s palsy, including her reports of difficulty with speech and any effects on occupational functioning. The Veteran was accordingly afforded another VA examination in April 2016 addressing her Bell’s palsy. In September 2016, the Board denied a higher initial rating for Bell’s palsy. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2017 decision, the Court found that the Board had erred in failing to address favorable evidence of pinguecula, which was found by the October 2014 VA examiner. The Court vacated the September 2016 Board decision and remanded the matter back to the Board for action consistent with the decision. In May 2018, the Board remanded the claim for further examination. The Veteran was afforded examinations in December 2018 and July 2019. In November 2019, the Board denied entitlement to an initial rating greater than 10 percent for Bell’s palsy and in January 2020, on the Veteran’s motion, the Board vacated the November 2019 decision because it violated the Veteran’s due process rights. As noted in the January 2020 decision, the Veteran had submitted a motion for an extension of time to submit additional evidence, which had been received at the Board but had not been associated with the claims file at the time of the November 2019 decision. Most recently, in October 2020, the Veteran submitted a motion for a 60-day extension to submit additional evidence. The Board granted the motion and the Veteran submitted additional evidence and argument in January 2021. No additional requests for additional time to submit evidence have been associated with the claims file. Entitlement to a rating greater than 10 percent for service-connected Bell’s palsy, to include entitlement to separate ratings for a residual eye condition and entitlement to an extraschedular rating, is remanded. The Veteran seeks an initial rating greater than 10 percent for her service-connected Bell’s palsy and residuals. In her January 2021 argument, she contends that the examinations and opinions obtained in December 2018 and July 2019 are inadequate because the examiners did not consider intermittent symptoms, which she reported but were not present during the examinations. In support of her claim, she submitted witness statements describing her symptoms, such as speech impairment, dry eyes, drooping right eye, and facial twitching. She stated that an examiner should be asked to consider the statements and provide an opinion as to the severity of her disability. She also alleges that her symptoms are not contemplated under the diagnostic code used to assess her disability and that these symptoms interfere with her employment; as such, she seeks an extraschedular rating. The Veteran also argues that the December 2018 and July 2019 examination reports are inadequate for rating purposes because both are internally inconsistent and/or inconsistent with her medical history. For example, the December 2018 examination report shows symptoms of “facial nerve, dry eye disease” associated with Cranial Nerve VII as well as mild reduction in strength in the upper and lower portion of her face. In another section, the examiner stated that she did not have symptoms associated with Cranial Nerve VII. The examiner did not address the Veteran’s lay statements asserting frequent symptoms of slurred speech, facial twitching, and floaters on examination, and whether her symptoms were associated with Bell’s palsy as ordered in the May 2018 Board remand. Regarding the July 2019 examination report, the examiner found symptoms related to Cranial Nerve VII and indicated the Veteran had moderate incomplete paralysis of the nerve; however, the examiner then opined that she should not have permanent residuals from an old Bell’s palsy. The examiner’s findings are inconsistent, and the opinion is not supported with rationale. The July 2019 examiner also failed to address her lay statements asserting frequent symptoms of slurred speech, facial twitching, and floaters on examination, and whether her symptoms were associated with Bell’s palsy as ordered in the May 2018 Board remand. The Board reviewed the examination reports and finds that the examiners did not adequately consider the Veteran’s lay statements asserting frequent symptoms of slurred speech, facial twitching, and floaters on examination when determining the severity of her Bell’s palsy. As the Veteran pointed out, the examination reports also show the examiners documented inconsistent findings. Additionally, the Veteran and the Court have specifically pointed out that the Veteran claims to have eye issues which may be related to Bell’s palsy. The medical records are unclear whether the Veteran’s reported dry eye syndrome manifested during service or whether any of her eye symptoms or diagnoses are due to or have been aggravated by her Bell’s palsy. While the July 2019 examiner found that the Veteran’s eye disorders were not related to Bell’s palsy, the examiner did not indicate whether the Bell’s palsy aggravated any of her eye disorders. On remand, an examination must be scheduled to determine the current severity of the Veteran’s Bell’s palsy, to include consideration of intermittent symptoms observed and reported by the Veteran and her witnesses. Opinions must also be obtained explaining whether the Veteran’s eye symptoms and diagnoses are related to service, due to Bell’s palsy, or have been aggravated by Bell’s palsy. The matters are REMANDED for the following action: 1. Associate with the electronic claims file updated VA treatment records, if any. 2. Schedule the Veteran for an appropriate VA examination to assess the severity of her Bell’s palsy and any associated eye conditions, to include pinguecula and dry eye syndrome. The entire claims file must be made available to and reviewed by the examiner in conjunction with the examination. All necessary tests should be performed and the results reported. The examination report should include discussion of the Veteran’s documented history, pertinent medical treatment, her lay statements, and her witness statements. After considering the appropriate evidence regarding the Veteran’s symptoms and considering the objective testing, the examiner should state whether the Veteran’s Bell’s palsy results in incomplete moderate, incomplete severe, or complete nerve paralysis. In rendering this opinion, the examiner is asked to specifically address the Veteran’s complaints of worsening symptoms, including frequent slurred speech, frequent twitching of the face, and that she frequently sees “floaters.” The examiner should also consider the witness statements attesting to the Veteran’s symptoms. If there is any medical reason to accept or reject the Veteran’s reported symptoms, this should be noted. Stated another way, do the Veteran’s reports about her symptoms align with how Bell’s Palsy is known to develop and progress or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? Further, the examiner must specifically opine as to the nature and severity of the Veteran’s eye disorders, including pinguecula and dry eye disorder. The examiner must state which eye conditions the Veteran is diagnosed with, and using the appropriate disability benefits questionnaire, indicate the nature, etiology and current severity of each identified eye condition found to be related to her service-connected Bell’s palsy. The examiner should specifically state whether it is at least as likely as not (50 percent or greater probability) that the eye disorder is due to service. The examiner must address each eye disorder. If the foregoing is negative, for each disorder diagnosed, the examiner should state whether is it at least as likely as not that the disorder is due to Bell’s palsy. Finally, if the foregoing is negative, the examiner must state whether it is at least as likely as not that the eye disorder has been aggravated by the Bell’s palsy. Separate opinions with rationale must be provided addressing both causation and aggravation. In providing the opinions, the examiner must address the Veteran’s and witness lay statements. A complete rationale for all opinions must be provided. If the examiner cannot provide any requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 3. Then, readjudicate the Veteran’s claim on appeal, to include consideration of whether referral for extraschedular consideration is warranted. If the benefits sought on appeal remain denied, provide the Veteran and her representative a supplemental statement of the case and allow an appropriate period for response. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. G. Alderman, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.