Citation Nr: 21027631 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 18-35 953 DATE: May 6, 2021 ORDER Entitlement to service connection for a Bell's palsy is granted. REMANDED Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for high blood pressure, to include as secondary to herbicide exposure, is remanded. FINDING OF FACT Resolving reasonable doubt in his favor, the Veteran's Bell's palsy had its onset on active duty. CONCLUSION OF LAW The criteria for service connection for Bell's palsy have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1964 to June 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran recently testified at a Board videoconference hearing before the undersigned Veterans Law Judge in December 2019. A transcript of that hearing has been associated with the claims file. This claim was previously before the Board in March 2020, at which time it was remanded for further development. Service Connection In order to establish service connection for the claimed disability, 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). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). 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 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 and 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). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra. Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for a Bell's palsy VA treatment records reflect that the Veteran developed weakness of the left side of his face in May 1986. The left side of his face was sagging, he could not close his left eye, and could not raise his left eyebrow. The left angle of the mouth was also drawing with no active motion. As a result, the physician diagnosed the Veteran with Bell's palsy. At the December 2019 Board hearing, the Veteran testified that he noticed drooping while on active duty but did not receive a diagnosis until May 1986. He still suffered from the condition and experienced drooping in his jaw. Pursuant to the March 2020 Board remand, the Veteran received a VA examination in November 2020 and the examiner noted a diagnosis of Bell's palsy from May 1986. The condition started in 1985 and had been ongoing, worsening over the years with symptoms of one-sided facial drooping and drying out of the eye. Based on the results of the examination, however, the examiner concluded that the condition was less likely than not related to service. Although there was a diagnosis made in May 1986, there was no evidence of a diagnosis in service. Therefore, a nexus had not been established. An addendum opinion was submitted in December 2020 and clarification was requested concerning the chronicity of the Veteran's Bell's palsy since 1986 and the nerve identified on examination. The examiner noted that, during the examination, the Veteran had subjective reports of worsening over the years and an objective notation of right sided facial droop. Abnormalities of cranial nerve VII were noted during the examination. However, no additional evidence was found for chronicity of treatment since 1986 for the condition. A second addendum opinion was submitted in February 2021 and the examiner was asked to clarify whether the current diagnosis of Bell's palsy was a continuation of the Bell's palsy diagnosed in 1986 or was a reoccurrence. The examiner found that the condition was a continuation, noting that the Veteran reported subjective worsening and physical objective findings were noted during the VA examination. The Veteran remained with residuals of right-side facial drooping with cranial nerve VII incomplete moderate paralysis, which was the common nerve affected with Bell's palsy. At the outset, the Board finds the November 2020 VA examination to be of diminished probative value, as the examiner's negative nexus opinion hinges on the lack of an in-service diagnosis of Bell's Palsy. A medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). However, the Veteran credibly testified that he began experiencing symptoms such as facial drooping during active duty, and these symptoms were subsequently diagnosed as Bell's palsy within a year of separation in May 1986. As such, the Board finds that the evidence demonstrates that the Bell's palsy symptoms manifested within one year of service separation, including to a compensable degree, and then continued thereafter to the present. See 38 C.F.R. § 3.309(a). Bell's palsy (as an organic disease of the nervous system), constitutes a "chronic" disease listed under 38 C.F.R. § 3.309(a). According, giving the Veteran the benefit of the doubt, the Board concludes that the evidence supports a finding that the Veteran's Bell's palsy is related to service and that service connection for this disability is warranted. REASONS FOR REMAND Entitlement to service connection for a left knee disorder Entitlement to service connection for a right knee disorder Pursuant to the March 2020 Board remand, the Veteran received a VA examination in November 2020 and the examiner concluded that the left and right knee disorders were less likely than not incurred in or caused by service. The examiner noted that the Veteran was diagnosed with left knee bursitis in May 1985 but found that there was no evidence of chronicity of care. Furthermore, there was no evidence found that the left and right knee disorders had their onset in service or were otherwise related to service. At the outset, the Board notes that the examiner did not offer a rationale for the right knee disorder. Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision."). Furthermore, a medical opinion based solely on the absence of documentation in the record is inadequate and that a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Therefore, these claims must be remanded for a new examination. Entitlement to service connection for high blood pressure, to include as secondary to herbicide exposure Pursuant to the March 2020 Board remand, the Veteran received a VA examination in November 2020 and the examiner concluded that the Veteran's high blood pressure was less likely as not related to service. Although there was a diagnosis of hypertension from May 1990, there was no evidence of a hypertension diagnosis during service. Therefore, it was less likely than not that the high blood pressure had its onset or was otherwise related to the Veteran's military service. Again, the Board notes that a medical opinion based solely on the absence of documentation in the record is inadequate and that a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Furthermore, the Veteran's representative submitted a brief in April 2021 highlighting "limited or suggestive evidence of an association between the exposure to Agent Orange and hypertension." The representative urged that there was an indication that hypertension may be related to the Veteran's conceded exposure to herbicides in Vietnam and noted that an examination had yet to be conducted to determine whether the condition was related to this exposure. The Board agrees with this argument and concludes that a new examination is warranted to determine whether the Veteran's currently diagnosed high blood pressure is at least as likely as not related to his in-service herbicide exposure. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an examiner other than the November 2020 examiner to determine the nature and etiology of his left and right knee disorders. The examiner should review the claims folder and note such review in the VA examination report. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's left and right knee disorders had their onset or are otherwise related to the Veteran's military service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. The Board highlights that the lack of an in-service diagnosis of a left and right knee condition is not fatal to the Veteran's claim. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 2. Schedule the Veteran for a VA examination with an examiner other than the November 2020 examiner to determine the nature and etiology of any diagnosed high blood pressure. The examiner should review the claims folder and note such review in the VA examination report. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's high blood pressure had its onset or is otherwise related to the Veteran's military service, to include conceded exposure to herbicides during active duty. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. The Board highlights that the lack of an in-service diagnosis of high blood pressure is not fatal to the Veteran's claim. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Daniels, 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.