Citation Nr: 21042759 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-08 720 DATE: July 13, 2021 ORDER Service connection for Bell's palsy is denied. REMANDED Entitlement to service connection for a disability of the right foot and/or ankle, to include Achilles tendinopathy, planar and retrocalcaneal spurs, and plantar fasciitis, is remanded. Entitlement to an initial rating higher than 10 percent for left knee instability prior to October 17, 2016 is remanded. Entitlement to an initial rating higher than 10 percent for left knee degenerative joint disease based on limitation of flexion prior to October 17, 2016 is remanded. Entitlement to a rating higher than 30 percent for residuals of a total left knee replacement from December 1, 2017 forward is remanded. FINDING OF FACT The record does not establish that the Veteran has had Bell's palsy or residuals of that condition during the pendency of this claim. CONCLUSION OF LAW The criteria for service connection for Bell's palsy are not met. 38 U.S.C. §§ 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1983 to January 1990, from May 1999 to September 1999, from November 2001 to June 2002, from April 2003 to March 2005, from December 2008 to March 2009, and from August 2011 to April 2012. She also had additional periods of inactive duty for training (INACDUTRA) and active duty for training (ACDUTRA). These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the matters in January 2020 for further development. The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2019. A transcript of the hearing is of record. Service Connection Service connection generally will be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link between the current disability and the disease or injury incurred or aggravated in service (the "nexus" element). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 16533 at *10 (Fed. Cir. June 3, 2021) (holding that if the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise), the claimant receives the benefit of the doubt). Bell's Palsy The Veteran states that she developed Bell's palsy as a result of vaccinations received in 1998 in preparation for deployment to Kosovo. See February 2017 VA Form 9; August 2019 Hearing Transcript. For the following reasons, the Board finds that service connection is not established. The Veteran does not state, and the evidence of record does not otherwise show, that her Bell's palsy manifested during a period of active service or a period of ACDUTRA. The service treatment records include a September 1999 separation report of medical history which states that she developed shingles on October 25, 1998 in each ear which caused Bell's palsy. A corresponding September 1999 separation examination report notes that, according to the history she provided (i.e. "by hx"), the Veteran had Bell's palsy in October 1998 as a result of shingles in the ears. The symptoms had resolved "completely." A May 2002 service examination report similarly notes that the Veteran had Bell's palsy in 1998. There is no mention of vaccinations in these record with regard to her reported history of Bell's palsy. The Veteran did not have active service in 1998. Rather, as noted, she states that vaccines administered during a training period in preparation for deployment resulted in Bell's palsy. See February 2017 VA Form 9. The Veteran's reported history of being diagnosed with Bell's palsy in 1998 is competent evidence. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). However, the record does not show that she has had Bell's palsy or any residuals of that condition during the pendency of this claim. At the August 2019 hearing, she testified that when she is tired her face will "droop," and that her eye often "vibrates" or "twitches." The September 2020 VA examination report similarly reflects that the Veteran related that current symptoms included twitching of the right eye and facial drooping. Her statements are competent evidence with regard to the description of these symptoms, as they would be readily perceptible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Still, the Board finds them insufficient to establish current residuals of Bell's palsy, as they are outweighed by more probative evidence. Specifically, the September 1999 separation examination report states that the Veteran's Bell's palsy had "resolved completely." The service treatment records, VA treatment records, and private treatment records dating from 1999 through 2021 make no mention of her face drooping or her eye twitching, or of any similar symptoms. A VA examination was performed in September 2020. The examination report reflects that the examiner found no evidence of current Bell's palsy or its residuals on examination or based on review of the claims file. The Board finds it implausible that such symptoms would not once be mentioned in any of these records, had they been reported, and likewise that it is implausible the Veteran would not have sought treatment for them, or at least reported them, had they been present. On that basis, the Board draws an adverse inference against the credibility of the Veteran's testimony from silence in the record with regard to establishing current residuals of Bell's palsy, especially in light of the statement that her symptoms had "resolved completely" in the September 1999 service examination report. See Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) (holding that there must be a proper foundation to draw adverse inferences against the credibility of testimony from silence in the record); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table) (holding that in determining whether a claimant's statements are credible, the Board may consider their plausibility and consistency with other evidence submitted on behalf of the claimant); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence"). That said, the Board has also considered the possibility that the Veteran may occasionally experience symptoms such as eye twitching that she has not reported, as might be the case if they were short-lived and relatively mild in nature. In that regard, the Veteran stated at the August 2019 hearing that she experiences drooping when she is tired, which suggests that this symptom is otherwise not present. To the extent she may occasionally experience such symptoms, the Board finds they do not constitute a disability for VA compensation purposes, as they are not shown to cause any functional impairment of earning capacity, given their short-lived and intermittent nature. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018) (defining the term "disability" for VA compensation purposes as functional impairment of earning capacity). In keeping with this finding, the September 2020 VA examination report reflects the examiner's determination that there was no impact on the Veteran's ability to work. The Veteran's statements are also not competent to establish that any such symptoms are in fact residuals of Bell's palsy, as this is a determination that is too complex to be made based on lay observation alone, and therefore requires medical evidence. See Jandreau, 492 F. 3d at 1376-77. She is not shown to have such expertise, and thus is considered a lay person in the field of medicine. In the September 2020 VA examination report, the VA examiner found that the Veteran does not have residuals of Bell's palsy. The examination report constitutes competent and probative evidence, as it was authored by a medical professional, and reflects findings based on examination of the Veteran and review of her medical history. Accordingly, it outweighs her statements on this issue. Because a current disability is not established, the issue of whether the Veteran's history of Bell's palsy may be linked to vaccinations administered during a training period is moot at this time. Nevertheless, the Board will note that the September 2020 VA examination report is mistaken in its findings that the Veteran had been scheduled for vaccinations on various dates, including in October 1998 and in earlier years, but had not in fact received any until 2004 and later. That is a misreading of her vaccination administration record. The examiner's conclusion is apparently based on the fact that the "VIS Version" and "Administering Tech" columns were not always filled out in that record, and not until 2004 and later years. The Board notes that VIS stands for "Vaccine Information Statement," and that the column "VIS Version" apparently refers to the most recent date of the information regarding the vaccine, and is to be filled out to verify that the current VIS was given to the patient (or parent or legal guardian). It may be that the VIS Version and Administering Technician columns represent information that was not required to be provided in vaccination records in 1998 or earlier years. The Board does not know. Whatever the case, the vaccination administration record clearly shows that the Veteran received a number of vaccinations in different years from 1982 through 2011, including in 1998. The vaccination record does not show that the Veteran received vaccinations by injection in October 1998 or shortly before that date. Rather, it shows that she received an oral typhoid vaccine in October 1998. It also shows that hepatitis A and hepatitis B immunizations by injection were administered on the same day in December 1998, and that a tuberculosis skin test (PPD) was also administered that day. The Board also notes that the service personnel records show points for participating in training activities in 1998, but are not specific enough to determine whether a vaccine in 1998 was administered during such a period. Nevertheless, as the record does not establish a current disability associated with Bell's palsy or any residuals during the pendency of this claimputting aside the issue of whether the development of shingles and resultant Bell's palsy (according to the Veteran) may be linked to a vaccinefurther development of that issue is not warranted at this juncture. See 38 C.F.R. § 3.159(d). In sum, as a current disability is not established, the criteria for service connection are not satisfied. See Holton, 557 F.3d at 1366. Because the preponderance of the evidence is against the claim, there is not an approximate balance of positive and negative evidence; therefore, the benefit-of-the-doubt rule does not apply. See Lynch, supra; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 U.S.C. § 5107. REASONS FOR REMAND Right Foot and/or Ankle Disability The Board remanded this claim to arrange for a new VA examination and obtain a new medical opinion. An examination was performed in September 2020, and an opinion provided in conjunction with that report. The Board finds the September 2020 opinion is not adequate to make an informed decision, and does not comply with the Board's remand directives, for the reasons that follow. In its remand, the Board found that the Veteran's claim for a foot condition encompasses a claim for an ankle condition. However, as in the April 2014 VA opinion, the September 2020 medical opinion merely notes that Achilles tendinopathy is not a foot condition, and, apparently on that basis, does not address whether it may be related to service or a service-connected disability. In this regard, during an active service period, an April 2012 service treatment record reflects that the Veteran had right ankle tenderness. An x-ray study of the right heel performed on April 12, 2012 reflects a diagnosis of Achilles tendinopathy. A soft tissue prominence was noted at the Achilles insertion. The September 2020 VA opinion notes that an x-ray study of the left heel was performed, but does not consider (and seems to be unaware of) this study of the right heel. Shortly after the Veteran's April 2012 separation from service, military treatment facility (MTF) records dated in May 2012 and June 2012 again note right ankle pain. The June 2012 record reflects that the Veteran reported experiencing right Achilles tendon and heel pain since December 2011, which she believed was caused by a faulty pair of boots while she was deployed, noting that there was a hard piece of material that rubbed her Achilles tendon and heel with ambulation. She had experienced pain ever since. She denied experiencing such issues prior to deployment. She was assessed with insertional Achilles pain (tendinopathy). A July 2012 MTF record also notes right Achilles tendon pain. No opinion has been provided as to whether the Veteran has a current disability of the right ankle or foot related to her ankle pain during service, including from wearing boots, and which addresses the findings of Achilles tendinopathy in April 2012, during service, or in June 2012, which is shortly after her service separation. In addition, the fact that there is no diagnosis of a foot condition, as opposed to an ankle condition, during service is not a sufficient basis in itself to render a negative nexus opinion. The examiner must still address the Veteran's in-service symptoms and whether any current condition of the foot or ankle may be linked to wearing boots, which the Veteran experienced as ill-fitting and which she associated with the onset of her symptoms. Finally, although the examiner ostensibly rendered an opinion on whether the Veteran's right foot or ankle condition may be secondary to an abnormal gait caused by her service-connected knee disabilities, as instructed by the Board, the rationale provided solely discusses issues relevant to direct service connection, such as whether there was an in-service diagnosis. That explanation is not relevant to secondary service connection, and therefore is inadequate. See 38 C.F.R. § 3.310. The Board notes that the Veteran has also been diagnosed with plantar and retrocalcaneal spurs and a bony heel spur of the right foot based on VA x-ray findings in March 2014 and September 2020, and with plantar fasciitis, as shown in a March 2021 private treatment record. On remand, a new opinion must be obtained as to whether any current right foot and/or ankle condition, including Achilles tendonitis, plantar fasciitis, and/or plantar and retrocalcaneal spurs, are related to disease or injury incurred in service, including her April 2012 x-ray diagnosis of right ankle Achilles tendinopathy during service, and her report of ongoing ankle pain since 2011 from wearing ill-fitting boots. An opinion should also be provided as to whether any current right foot and/or ankle condition has been caused or aggravated by an abnormal gait due to her service-connected knee disabilities. See 38 C.F.R. § 3.310. Left Knee Disabilities A VA examination was most recently performed in September 2020 to evaluate the severity of the Veteran's service-connected left knee disabilities. According to the report, the Veteran stated that she experiences severe flare-ups of left knee symptoms on a weekly basis, which were precipitated by exertion. She reported being unable to bend, twist, or run for prolonged periods of time without pain. On examination, range of motion of the left knee was from 0 degrees extension to 140 degrees flexion, representing a normal range of motion. There was no additional limitation on repeat testing. The examination was not performed at the time of a flare-up. In the section of the report asking whether pain, weakness, fatigability, or incoordination significantly limit functional ability with flare-ups, the examiner checked the "no" box. The examiner did not provide an estimate of additional loss of range of motion during flare-ups. As the Veteran exhibited normal range of motion of the knee at the examination, and yet reported experiencing severe flare-ups, a thorough explanation must be provided as to why there be no significantly limited functional ability during flare-ups, including no loss of range of motion, as indicated in the report. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). On remand, an examiner should be asked to review the September 2020 VA examination report and the evidence relevant to the history of the Veteran's left knee disability during the period under review, and provide an opinion as to whether there would be additional functional loss during flare-ups, supported by a complete explanation. If the examiner finds there would be additional functional loss, an estimate in terms of loss of range of motion should be provided, if possible. The matters are REMANDED for the following action: 1. Obtain a new VA medical opinion on the claim for a disability of the right foot and/or ankle, as specified below. The opinion should be provided by an examiner different from the one who provided the September 2020 opinion. Direct service connection: The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current condition of the right foot and/or ankle, including Achilles tendinopathy, plantar fasciitis, and/or plantar or retrocalcaneal spurs, are related to the Veteran's in-service right ankle symptoms during the August 2011 to April 2012 service period. The examiner must address the April 2012 service treatment records reflecting that the Veteran had right ankle tenderness, and that an x-ray study of the right heel showed Achilles tendinopathy; a soft tissue prominence was noted at the Achilles insertion. The examiner must also address the June 2012 record showing that the Veteran reported experiencing right Achilles tendon and heel pain since December 2011, which she believed was caused by a faulty pair of boots while she was deployed, noting that there was a hard piece of material that rubbed her Achilles tendon and heel with ambulation. She had experienced pain ever since. The examiner is advised that the September 2020 VA medical opinion is incorrect in stating that only an x-ray study of the left heel was performed during service. An x-ray study of the right heel was also performed in April 2012, which showed Achilles tendinopathy, as just noted. A complete explanation must be provided in support of the conclusion reached, and which addresses both the foot and ankle. Secondary service connection: If the examiner's opinion regarding direct service connection is negative, then the examiner should also render an opinion as to as to whether it is at least as likely as not that the Veteran's right foot and/or ankle disability, including plantar fasciitis, Achilles tendinopathy, and/or plantar and retrocalcaneal spurs, have been caused or aggravated by an abnormal gait due to her service-connected bilateral knee disabilities. The issues of causation and aggravation must be separately addressed 2. An examiner (different from the one who conducted the September 2020 examination) should review the September 2020 VA knee examination report and the evidence in the claims file relevant to history of the Veteran's left knee disability, including the earlier VA examination reports. The examiner is asked to provide an opinion as to whether there would be additional functional loss during flare-ups of the left knee disability. The examiner must provide a complete explanation which takes into account the Veteran's report of "severe" flare-ups at the September 2020 examination. If the examiner finds there would be additional functional loss during flare-ups, an estimate in terms of range of motion loss should be provided, if possible. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rutkin, 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.