Citation Nr: 21027722 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-35 103 DATE: May 6, 2021 ORDER A disability rating of 10 percent for Bell's palsy effective November 30, 2020 is granted. REMANDED Service connection for a respiratory disability to include due to asbestos exposure is remanded. Service connection for a neurological disability other than Bell's palsy and headaches is remanded. Service connection for headaches is remanded. A compensable disability rating for Bell's palsy prior to November 30, 2020 and in excess of 10 percent thereafter is remanded. FINDING OF FACT In November 30, 2020, the Veteran's Bell's palsy has manifested moderate incomplete paralysis. CONCLUSION OF LAW The criteria for a disability rating of 10 percent for Veteran's Bell's palsy have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8207. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Navy from July 1956 to October 1958. These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal is being adjudicated under the legacy appellate framework. The Veteran initially requested a personal hearing before the Board, but, in April 2019, the Veteran withdrew his hearing request. These matters were previously before the Board, and, in December 2019, the Board remanded these matters for further development. A disability rating of 10 percent for Bell's palsy effective November 30, 2020 is granted. At issue is whether the Veteran is entitled to an increased disability rating for his Bell's palsy. As discussed below, the Board cannot dispose of the Veteran's increased rating claim in its entirety at this time. Nevertheless, the evidence of record is sufficient to grant the Veteran partial relief at this time. The Veteran underwent a VA examination on November 30, 2020 which indicated that the Veteran's previously service-connected Bell's palsy manifested moderate incomplete paralysis. A disability rating of 10 percent is assigned for moderate incomplete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8202. Therefore, the evidence of record is sufficient to grant a disability rating of 10 percent for Bell's palsy effective November 30, 2020. REASONS FOR REMAND 1. Service connection for a respiratory disability to include to asbestos exposure is remanded. At issue is whether the Veteran is entitled to service connection for a respiratory disability to include due to asbestos exposure. Unfortunately, this matter must be remanded again prior to disposition. In a December 2019 decision, the Board noted that the Veteran had been diagnosed with a respiratory disability (in this case chronic obstructive pulmonary disorder (COPD). The Board also noted that the Veteran's military occupational specialty (MOS) had a high likelihood of chance of asbestos exposure. Based on this rationale, the Board remanded this matter for a new VA examination in order to opine whether or not a medical nexus existed between a current diagnosis of a respiratory disability (to include COPD) and in-service asbestos exposure. The Veteran was provided a new VA examination in November 2020. The examiner opined that a medical nexus did not exist, because the Veteran's treatment records did not memorialize exposure to asbestos. Unfortunately, this matter must be remanded for a new VA examination. The Board, rightly or wrongly, has, by virtue of the Veteran's MOS, come to the conclusion that there is a reasonable likelihood that the Veteran was exposed to asbestos regardless of any documentation, or lack thereof, in the Veteran's medical records. Whether such exposure did or did not occur is ultimately a conclusion that the Board is empowered to make as the finder of fact. Layno v. Brown, 6 Vet. App. 465 (1994). It is not a matter of medical complexity which the Board is required to defer to a competent medical provider in order to avoid offering a medical opinion in the guise of a legal opinion. Colvin v. Brown, 6 Vet. App. 177 (1993). Therefore, the issue that the Board ultimately needed addressed by the VA examiner was whether or not a medical nexus existed between a respiratory disability to include COPD and asbestos exposure; assuming for the sake of the opinion that the Veteran was indeed exposed to asbestos. The examiner ultimately did not address this issue. Therefore, this matter must be remanded in order to ensure substantial compliance with the Board's previous remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). 2. Service connection for a neurological disability other than Bell's palsy and headaches is remanded. 3. Service connection for headaches is remanded. 4. A compensable disability rating for Bell's palsy is remanded. At issue is whether the Veteran is entitled to service connection for a neurological disability other than Bell's palsy or headaches; service connection for headaches; and a compensable disability rating for Bell's palsy. Unfortunately, these matters must be remanded for further development. The Veteran's service treatment records indicate that the Veteran sought treatment for paralysis of the face during a period of service from November 1956 to January 1957. During his course of treatment, the Veteran was variously diagnosed with neuropathy of the face or of a facial nerve and Bell's palsy. The Veteran also contemporaneously experienced headaches. The Veteran underwent a VA neurological examination in April 2013 in order to evaluate the Veteran's claims. The examiner opined that the Veteran had a current diagnosis of Bell's palsy; manifested Bell's palsy in November 1956; and that a medical nexus existed between the two. The examiner opined that the Veteran's Bell's palsy manifested little or no symptoms, and that the Veteran's headaches were migraine headaches, which are unrelated to Bell's palsy. Additionally, the examiner noted a diagnosis of trigeminal neuralgia while discussing the Veteran's headaches, but the examiner did not discuss, in any detail, the relationship between the two. The Veteran underwent another VA neurological examination in November 2020. The examiner diagnosed the Veteran with Bell's palsy; migraine headaches; and trigeminal neuralgia. The examiner indicated that the Veteran manifested trigeminal neuralgia and headaches in November 1956. The examiner observed that the Veteran now manifested neurological symptoms including severe constant pain; severe intermittent pain; moderate dull pain; and incomplete moderate paralysis. The examiner opined that the Veteran headaches were neither caused by service nor caused by Bell's palsy, because the Veteran headaches resolved after manifesting trigeminal neuralgia and headaches during service, and the Veteran manifested migraine headaches. Additionally, the examiner opined that the Veteran's trigeminal neuralgia was not due to the Veteran's Bell's palsy, because the Veteran manifested trigeminal neuralgia during service. The Veteran's service treatment records and VA examinations have raised multiple questions that the Board must answer in order to fully evaluate the Veteran's claims for service connection for a neurological disability other than headaches and Bell's palsy and service connection for headaches that the Board, unfortunately, cannot answer based on the evidence of record. The first question that must be answered is whether the Veteran has a neurological disability other than headaches or Bell's palsy and whether or not the Veteran has headaches for VA compensation purposes. The presence of a current disability or a disability during the pendency of the period on appeal is the cornerstone of a claim for service connection, and, without one, the Veteran cannot sustain a claim for service connection. Degemetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). The Board does observe that the Veteran has been diagnosed with a neurological disability other than headaches or Bell's palsy, namely trigeminal neuralgia. Additionally, the Veteran has been diagnosed with a type of headache, specifically migraines. Unfortunately, this does not resolve the matter. The practice of providing multiple disability ratings for duplicative symptomology under various diagnoses, also known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Bell's palsy symptoms include paralysis and headaches. MedlinePlus Medical Encyclopedia, https://medlineplus.gov/ency/article/000773.htm (last visited April 28, 2021). Trigeminal neuralgia cause face pain. MedlinePlus Medical Encyclopedia, https://medlineplus.gov/trigeminalneuralgia.html#:~:text= Trigeminal%20neuralgia%20(TN)%20is%20a,talking%2C%20can%20set%20it%20off. (last visited April 28, 2021). Although not necessary indivisible, such symptomology is at least potentially duplicative. Moreover, the rating criteria for the Veteran's Bell's palsy has been assigned pursuant to Diagnostic Code 8207; see May 2013 Rating Decision Code Sheet; and, pursuant to this rating criteria, disability ratings are assigned for various degrees of paralysis including pain. 38 C.F. R. § 4.124a, Diagnostic Code 8207. The Veteran's headaches, however, would, if granted service connection, likely be assigned pursuant to Diagnostic Code 8100, and, pursuant to this criteria, disability ratings are assigned for various degrees and various frequencies of pain to include any and all impact on economic adaptability. 38 C.F. R. § 4.124a, Diagnostic Code 8207. As discussed above, a recent VA examination does indicate that the Veteran has manifested severe constant pain; severe intermittent pain; moderate dull pain; and incomplete moderate paralysis, but, this same VA examination diagnosed the Veteran with trigeminal neuralgia and Bell's palsy. It is thus unclear which symptoms are attributable to which diagnosis. Moreover, the examiner does not provide a method of determining what if any of this pain is distinguishable from the Veteran's headaches. Thus, it is unclear whether or not the Veteran's diagnosed trigeminal neuralgia and headaches are manifesting symptomology distinguishable from the Veteran's Bell's palsy. The Board cannot resolve the Veteran's claims without addressing this matter. Next, the Board notes that the first VA examination of record opined that facial paralysis that the Veteran manifested in November 1956 was attributable to Bell's palsy (despite the fact that the Veteran's service treatment records variously diagnosed the Veteran's claim as neuropathy of the face/facial nerve and Bell's palsy), and the second VA examination of record opined that the November 1956 facial paralysis was attributable to trigeminal neuralgia. Moreover, the first VA examination found the present of Bell's palsy in-service sufficient to conclude that a medical nexus existed to a current diagnosis, while the second VA examination does not discuss such a disability. These results raise several substantive medical questions. What disability did the Veteran manifest in 1956: neuropathy of the face/facial nerve; Bell's palsy; trigeminal neuralgia; or some other condition entirely? If then Veteran did manifest trigeminal neuralgia during service in 1956, then why isn't there a medical nexus between a current diagnosis trigeminal and an in-service incurrence of trigeminal? This is a question that is held in particularly sharp relief given that the conclusion that the Veteran manifested Bell's palsy during service in 1956 was a valid reason for concluding that there was a medical nexus between a current diagnosis of Bell's palsy and an in-service incurrence of Bell's palsy. Finally, there is the etiology of the Veteran's headaches to consider. The Veteran has headaches. The Board is cognizant that more than one VA examination has indicated that the Veteran has migraines; ostensibly indicating that migraines have an etiology that is distinct from palsy-generated headaches. Regardless, what is unclear from the record is what facts and data are being relied on to determine that the Veteran's headaches are attributable to some cause other than the Veteran's Bell's palsy. Put another way, what's the difference between migraine headaches and palsy-generated headaches, and what specifically in the Veteran's treatment records makes one more likely than the other. Once VA undertakes the effort to provide the Veteran with a VA examination, VA must provide the Veteran with an adequate one, and an adequate examination is sufficiently detailed in order to ensure that VA's evaluation is fully formed. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, the Veteran's claims for service connection for headaches and a neurological disability other than headaches and Bell's palsy must be remanded in order to address the concerns discussed supra. Moreover, the Veteran's increased rating claims for Bell's palsy must be remanded as well in order to avoid piecemeal appellate litigation. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Arrange to provide the Veteran with a VA examination (or if necessary, a phone interview and a VA medical opinion based on the evidence of record) in order to discuss the following: (a.) Is it at least as likely as not (50 percent or more) that a medical nexus exists between an in-service incurrence to include asbestos exposure and a current diagnosis of a respiratory disability to include COPD? Why or why not? In answering this question please assume that the Veteran sustained asbestos exposure during a period of service? (b.) How, if at all, would the previous opinion change if the assumption that the Veteran sustained asbestos exposure during service was relaxed? Why? 2. Arrange to provide the Veteran with a VA examination (or if necessary, a phone interview and a VA medical opinion based on the evidence of record) in order to discuss the following: (a.) Please discuss any and all symptoms of the Veteran's Bell's palsy. (b.) Please discuss any and all symptoms of the Veteran's headaches. (c.) Please discuss any and all symptoms of the Veteran's trigeminal neuralgia. (d.) Has the Veteran manifested any neurological symptoms that cannot be considered either headaches or paralysis? If so, then please list them and please identify what neurological disability that they are associated with. (e.) Please describe to the extent that it is medically ascertainable what disability the Veteran was hospitalized for during his period of service in November 1956 (i.e. Bell's palsy, neuropathy of the face/facial nerve, trigeminal neuralgia, or some other condition). Why? (f.) What is the medical significance, if any, of an April 2013 VA examination which indicated that the Veteran manifested Bell's palsy in November 1956? Why? (g.) What is the medical significance, if any, of a November 2020 VA examination which indicated that the Veteran manifested trigeminal neuralgia in November 1956? Why? (h.) Is it at least as likely as not (50 percent or more) that a medical nexus exists between an in-service incurrence and a current diagnosis of a neurological disability other than headaches and Bell's palsy? Why or why not? (i.) Is trigeminal neuralgia a disability that resolves and then periodically reappears without explanation or is trigeminal neuralgia a chronic disability that tends to manifest continuously over time? Why? (j.) How do you differentiate between headaches that are caused by Bell's palsy and headaches that are cause by some other reason to include migraines? (k.) What facts or data memorialized in the Veteran's treatment records, if any, would tend to make it more or less likely that the Veteran's headaches were related to the Veteran's Bell's palsy as opposed to some other reason such as migraine? Why? (l.) What causes migraines; and why are they unrelated to Bell's palsy; and what facts or data in the Veteran's treatment records, if any, make migraines more likely than some other cause of the Veteran's headache; like Bell's palsy? Why? DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Seaton 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.