Citation Nr: 21031533 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 20-22 032 DATE: May 24, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, diagnosed as major depressive disorder with generalized anxiety disorder, as secondary to service-connected Bell's palsy, is granted. Entitlement to a rating higher than 10 percent for Bell's palsy is denied. REMANDED Entitlement to service connection for a gambling disorder, to include as secondary to major depressive disorder with generalized anxiety disorder, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of evidence indicates the Veteran does not have PTSD that is causally or etiologically due to service. 2. Resolving all reasonable doubt in her favor, the Veteran's acquired psychiatric disorder, diagnosed as major depressive disorder with generalized anxiety disorder, is proximately due to her service-connected Bell's palsy. 3. The Veteran's Bell's palsy is not manifested by symptoms that more nearly approximate severe incomplete paralysis or complete paralysis of the seventh (facial) cranial nerve. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for service connection for an acquired psychiatric disorder, diagnosed as major depressive disorder with generalized anxiety disorder, as secondary to service-connected Bell's palsy, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303 3.310. 3. The criteria for a disability rating higher than 10 percent for Bell's palsy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8207. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1952 to October 1955. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a May 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in April 2021 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. Service Connection The Veteran seeks entitlement to service connection for an acquired psychiatric disorder, to include PTSD. In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 4 (1990). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for PTSD. The Veteran asserts she has PTSD as a result of military sexual trauma (MST) during service. There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304 (f), which take precedence over the general requirements for establishing service connection in 38 C.F.R. § 3.303. See Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Establishment of service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f). Diagnoses of mental disorders must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 5th edition, of the American Psychiatric Association (DSM- 5). A January 2017 VA treatment note indicates the Veteran spent time talking about military sexual trauma she experienced while in the Navy. She was noted to have a diagnosis of MST/PTSD; however, there is no indication that a thorough evaluation was completed at the time. The Veteran was afforded a VA examination in April 2018, at which time she was diagnosed with unspecified depressive disorder and gambling disorder; she was not diagnosed with PTSD. The examiner noted that multiple PTSD screenings in VA records were negative. The examiner explained that the Veteran's reports of military incidents do not meet DSM-5 PTSD criteria A and the Veteran did not endorse PTSD symptomatology. A September 2019 VA treatment note states that the Veteran's experiences during her time in service were discussed and "it is obvious she has PTSD from being sexually exploited by superior officers including the captain of the ship she was employed on." An addendum opinion was obtained in April 2020 regarding the treatment records that list military sexual trauma/PTSD under mental health diagnoses. The examiner explained that while the Veteran described military sexual advances during her mental health treatment visits, she did not endorse symptoms of PTSD, nor was she diagnosed with PTSD; it appears that her mental health provider noted her descriptions of military sexual trauma and placed PTSD on a list of rule out diagnoses, as would be best practices during an initial mental health appointment where this history was noted. The Veteran submitted a private psychiatric evaluation in June 2020 that diagnosed the Veteran with major depressive disorder with generalized anxiety disorder. The Veteran testified in April 2021 regarding her asserted stressors during service and that she believes she currently has PTSD as a result of her time in service. After a review of the evidence, with regard to the matter of whether the Veteran has a current diagnosis of PTSD, the Board finds that the evidence is insufficient to show that the Veteran currently has PTSD. In fact, there is highly significant medical evidence against such a finding. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (under 38 U.S.C. § 1131, an Appellant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation). Notably, neither the private evaluation submitted by the Veteran nor the VA psychiatric examination indicates a diagnosis of PTSD, providing evidence against this claim. The Board finds that the preponderance of the evidence is against the claim for service connection for PTSD, and that the claim must be denied. In reaching this decision, the Board has considered several findings of PTSD in treatment records. See, e.g., September 2019 VA treatment note. However, none of these reports are shown to have been based on a review of the Veteran's case as a whole - there is no indication that the medical providers reviewed any other relevant evidence in the claims file in rendering their diagnoses. It is true that a review of the claims file or lack thereof does not control the probative value of a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. at 304. However, these reports warrant less probative weight as they do not indicate that they were based on a complete and thorough evaluation of the Veteran, unlike the VA examination of record and the private evaluation, which indicate the Veteran's records were reviewed. Simply stated, the best medical evidence in this case, the VA examination and the private evaluation, provide highly probative evidence against the Veteran's claim for service connection for PTSD. While some of the various treatment providers took note of the Veteran's reported symptoms and assessed her with having PTSD, these assessments and diagnoses are not supported by a complete mental status examination of the Veteran and/or the objective medical findings derived therefrom, and are not as persuasive as the VA examination and private evaluation. When complete evaluations were conducted, the results did not indicate the Veteran has PTSD. For example, although MST/PTSD was recorded in January 2017 after the Veteran discussed her in-service stressors, the April 2020 VA addendum opinion explained that after the Veteran reported her in-service military sexual trauma stressors, these diagnoses were placed on a list of rule out diagnoses, as would be best practice during an initial mental health appointment where this history was noted; however, after a thorough evaluation, the Veteran did not meet the diagnostic criteria for PTSD, as discussed in the April 2018 VA examination and she was also not diagnosed with PTSD during the private evaluation in June 2020. The question that must be determined is whether there is a probative diagnosis of PTSD at any time since the claim was filed. McClain v. Nicholson, 21 Vet. App. 319 (2007) (the presence of a disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative). The references to "MST/PTSD," and several diagnoses of PTSD that do not appear to be based on complete evaluations, are not interpreted as a persuasive finding that PTSD is a current disability, or that it has been present at any specific time pertinent to the appeal. The Board places greatest probative weight on the VA examination report, multiple VA opinions, and the private evaluation. The examiners indicated the Veteran does not meet the criteria for PTSD, and her symptoms have been attributed to acquired psychiatric disorders, other than PTSD. These opinions are persuasive and include thorough explanations, an accurate understanding of the facts, a review of the evidence, and clear conclusions. To the extent that the Veteran advances her own interpretation of her medical condition indicating that she does in fact have PTSD, the Board acknowledges that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, the diagnosis of a mental health disorder is a complex medical matter requiring training and expertise that the Veteran does not possess. Therefore, the probative value of the Veteran's general assertions in this regard is outweighed by the probative value of the evidence outlined above documenting that the Veteran does not have PTSD. The preponderance of evidence indicates the Veteran does not have a diagnosis of PTSD. The Court has consistently held that service connection cannot be awarded in the absence of current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (citing Brammer v. Derwinski, 3 Vet. App. 223 (1992), and Rabideau v. Derwinski, 2 Vet. App. 141 (1992)) aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Thus, without evidence to show that the Veteran suffers from a diagnosis of PTSD which conforms to the criteria as required by regulation, service connection for PTSD must be denied. The Board has considered the applicability of the benefit of the doubt doctrine. However, because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107 (b). 2. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD. The Veteran seeks entitlement to service connection for an acquired psychiatric disorder, other than PTSD. She asserts she experiences psychiatric symptoms, such as depression and anxiety as a result of military sexual trauma, or, in the alternative, that her disorder is due to her service-connected Bell's palsy. As service connection for an acquired psychiatric disorder is being granted on a secondary basis based on causation, there is no need to discuss entitlement to service connection on a direct basis or any other basis. Service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran has a current diagnosis of major depressive disorder with generalized anxiety disorder. See May 2020 private evaluation. The Veteran is service connected for Bell's palsy. See October 1974 rating decision. The key question at issue is whether the Veteran's major depressive disorder with generalized anxiety disorder is caused or aggravated beyond its natural progression by the Veteran's service-connected Bell's palsy. A private medical evaluation and opinion were received in June 2020. The report noted the Veteran was examined in May 2020, and after review of the Veteran's VA records and an examination was conducted, she was diagnosed with major depressive disorder with generalized anxiety disorder. The licensed mental health counselor opined that the Veteran developed anxiety and depression as a result of the Bell's palsy, which has worsened significantly since that time. The counselor explained that the Veteran did not experience any mental health symptoms prior to developing Bell's palsy, thus it is more likely than not that the service-connected disability led directly to the development of her mental health diagnoses. Although a VA medical opinion was obtained regarding the Veteran's psychiatric disorders in April 2018, the VA examiner did not provide an opinion pertaining to secondary service connection. The Veteran testified in April 2021 that her Bell's palsy affected her self-esteem and caused insecurity and depression. The Board finds no adequate basis to reject the evidence of record that is favorable to the Veteran, based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). Resolving all doubt in the Veteran's favor, based on the available medical and lay evidence, the Board finds that the Veteran's current major depressive disorder with generalized anxiety disorder is proximately due to her service-connected Bell's palsy. In light of the discussion above, while the evidence is not unequivocal, it has nonetheless placed the record in at least relative equipoise. As such, the Veteran's service-connection claim for an acquired psychiatric disorder, diagnosed as major depressive disorder with generalized anxiety disorder, on a secondary basis, is granted. Increased Rating 3. Entitlement to a rating higher than 10 percent for Bell's palsy. Service connection for Bell's palsy was established by an October 1974 rating decision, at which time a 10 percent rating was assigned, effective April 1974. A claim for an increased rating was received in February 2018. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board has considered the entire record, including the Veteran's VA clinical records and private treatment records. These show complaints and treatment but will not be referenced in detail. 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 discuss the evidence pertinent to the rating criteria and the current disability. The Veteran's Bell's palsy is currently rated as 10 percent disabling under Diagnostic Code 8207, pertaining to paralysis of the seventh (facial) cranial nerve. Under Diagnostic Code 8207, a 10 percent rating is assigned for moderate incomplete paralysis; a 20 percent rating is assigned for severe incomplete paralysis; and a 30 percent rating is assigned for complete paralysis of the seventh (facial) cranial nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8207. Disabilities involving the seventh cranial nerve may be evaluated based on paralysis, neuritis, or neuralgia. 38 C.F.R. § 4.124a, DC 8207, 8307, 8407. Neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved. 38 C.F.R. § 4.123. Neuralgia characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. The Board notes that the terms "mild," "moderate," "moderately severe," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Although a medical examiner's use of descriptive terminology such as "mild" is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Veteran was afforded a VA examination in April 2018. The Veteran reported persistence of left sided facial pain with headaches. The examiner noted that the Veteran currently experiences intermittent pain. Muscle testing revealed mild, decreased function of the left cranial nerve VII. Sensory examination was normal. The examiner indicated that the Veteran has moderate incomplete paralysis of the left cranial nerve VII. There were no other pertinent physical findings. The examiner reported that the Veteran's disability did not affect her ability to work. A disability benefits questionnaire was completed in January 2020. It was noted that the Veteran had a history of Bell's palsy at age 20. The physician reported that the Veteran gave a history of sudden onset of left facial palsy with weakness of the left eye closure while in the military in 1954. It was noted that she was given symptomatic treatment with an eye patch. The physician stated the Veteran has no residual facial weakness or numbness and has no complaints of diplopia, dysesthesias, or weakness. The physician reported that the Veteran's cranial nerve VII was affected in 1954 with no residual deficit; there were no current findings, signs, or symptoms attributable to her Bell's palsy. There was no constant pain, no intermittent pain, no dull pain, no paresthesias or dysesthesias, no numbness, no difficulty chewing, no difficulty swallowing, no difficulty speaking, no increased or decreased salivation, or gastrointestinal symptoms. Muscle strength testing and sensation testing were normal. The physician stated a computed tomography (CT) of the head in December 2018 indicated no intracranial abnormalities. Concluding, the physician indicated that the Veteran's Bell's palsy was a self-limiting condition, with no residual deficits, and no disability related to Bell's, which occurred over 60 years prior. The Veteran testified in April 2021 that when she is tired or sick her left eye "shrinks" and she experiences pain, headaches, and her vision is affected. The Board has considered the Veteran's complaints that her left eye and vision are affected by her Bell's palsy and that she experiences headaches as well. While the Veteran is competent to report these symptoms, no physician has indicated that they are manifestations of her Bell's palsy. Indeed, the Veteran was recently denied service connection for headaches as secondary to her Bell's palsy in a February 2021 rating decision after a November 2020 VA examiner opined that it was less likely than not that her headaches are due to or aggravated by her Bell's palsy. During the recent DBQ in January 2020, the physician specifically noted that no current findings, signs, or symptoms attributable to her Bell's palsy and stated there were no residual deficits or disability related to her previous Bell's palsy. The Board finds that even if such symptoms were attributable to the Veteran's service-connected disability, the evidence does not demonstrate the presence of symptoms that more nearly approximate severe incomplete paralysis of the cranial nerve. No such suggestion was made by any of the medical professionals that have assessed the nature and severity of her disability. As detailed above, VA examiners throughout the claim period have not found more than moderate, incomplete paralysis of cranial nerve VII, with no effect on or association with speech difficulty or vision, and no effect on work capacity or daily activities. The weight of treatment record evidence is consistent with these findings, reflecting no impairment or disability associated with the Bell's palsy other than intermittent pain and mild incomplete paralysis on muscle strength testing of the cranial nerve VII, resulting in an overall impairment of no more than moderate incomplete paralysis of the nerve. The weight of evidence of record is thus against the Veteran having more than moderate incomplete paralysis of cranial nerve VII, and no other significant impairment associated with her Bell's palsy during the claim period. The Veteran's attribution of other symptoms or conditions to her Bell's palsy over the claim period is not supported by medical evidence, with the weight of competent, credible evidence against such other symptoms or conditions being due to her Bell's palsy, and against any impairing episodes of recurring Bell's palsy during the appeal period. Examiners have instead found resolution of Bell's palsy, with a remote history of an incurrence in 1954, with only moderate, incomplete paralysis of cranial nerve VII present as a residual during the claim period. Accordingly, the weight of the evidence is against assignment of more than a 10 percent rating for Bell's palsy at any time during the claim period. 38 C.F.R. § 4.124a, Diagnostic Code 8207. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 4. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as a gambling disorder, to include as secondary to major depressive disorder with generalized anxiety disorder. The Veteran seeks entitlement to service connection for her Axis I diagnosis of gambling disorder. On remand, a medical opinion should be obtained as to whether her diagnosed gambling disorder is casually or etiologically due to service or is proximately due to or aggravated by her now service-connected major depressive disorder with generalized anxiety disorder. 5. Entitlement to a TDIU. The Veteran seeks entitlement to a TDIU. As a result of this decision, the Veteran has been granted entitlement to service connection for an acquired psychiatric disorder, diagnosed as major depressive disorder with generalized anxiety disorder. The AOJ must assign disability ratings in the first instance; such assignment may impact whether the Veteran satisfies the schedular requirements for a TDIU rating, as set forth in 38 C.F.R. § 4.16 (a). Thus, a decision by the Board on the Veteran's TDIU claim would be premature. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated treatment records. 2. Obtain an addendum VA medical opinion for the Veteran's diagnosed gambling disorder. The claims folder must be made available to the examiner for review. The examiner is asked to review all pertinent records associated with the claims file, and to offer comments and an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that: a) the Veteran's gambling disorder is causally or etiologically due to her time in service, to include her reported military sexual trauma. b) the Veteran's gambling disorder is proximately due to her service-connected major depressive disorder with generalized anxiety disorder; or, c) the Veteran's gambling disorder is aggravated (beyond a natural progression) by her service-connected major depressive disorder with generalized anxiety disorder. All opinions must be supported by a clear rationale and a discussion of the facts and medical principles involved is required. 3. After all of the above actions have been completed, assign a disability rating for the Veteran's service-connected major depressive disorder with generalized anxiety disorder, and readjudicate all claims, including entitlement to a TDIU. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.