Citation Nr: 22016563 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 18-28 468A DATE: March 22, 2022 ORDER Entitlement to service connection for a psychiatric disorder, diagnosed as major depressive disorder, secondary to service-connected Bell's palsy, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT The Veteran's psychiatric disorder, diagnosed as major depressive disorder, is proximately due to his service-connected Bell's palsy. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder, diagnosed as major depressive disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from March 1969 to December 1970, which included service during the Vietnam Era. These matters come before the Board of Veterans' Appeals (Board) on appeal of a May 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded these matters in October 2020 and again in November 2021. They have been returned to the Board for appellate review. 1. Entitlement to service connection for a psychiatric disorder. The Veteran is seeking service connection for his psychiatric condition, diagnosed as major depressive disorder, secondary to his service-connected Bell's palsy. He does not contend, nor does the record suggest, that his major depressive disorder began in service. Rather, he has indicated that his condition developed years after service, but that such is due to his service-connected Bell's palsy. See December 2020 Veteran statement. In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As noted above, the Veteran contends that he developed his major depressive disorder following service but related to his service-connected Bell's palsy. A December 2020 VA Mental Disorders Disability Benefits Questionnaire (DBQ) reflects the diagnosis of mild major depressive disorder. Also, a June 2018 VA mental health note indicated an impression of a "specific mental disorder due to [service-connected] physical condition," major depression and dysmorphophobia. Thereafter, a March 2020 VA mental health outpatient treatment plan note explained a change in diagnosis was in order and indicated an impression of "mood disorder due to a [medical] condition." Thus, the Veteran has satisfied the first element of service connection, a current disability. There is competent evidence of record in support of and against the theory that the major depressive disorder is proximately due to or the result of his service-connected Bell's palsy. Historically, the Veteran suffered facial paralysis in 1970 in service, and service connection for Bell's palsy was granted in an April 1979 rating decision. However, service treatment records are negative for any diagnosis or symptomatology related to depression. Psychiatric clinical evaluation at separation in November 1970 was normal. In addition, VA examination reports dated in March 1979 and February 1983 are also negative for any diagnosis or symptomatology related to depression. Social Security Administration (SSA) records describe the treatment the Veteran received over time for various health problems, including depression. These records show that the Veteran was deemed disabled for SSA purposes since December 2000, and that his primary diagnosis was major depressive disorder. An April 2001 SSA comprehensive mental status examination report notes depression since 1998. The Veteran reported feeling depressed and withdrawn, with paranoid thinking towards the people at his former employment. He also talked about having problems getting along with other people. He stated he was irritable around others and had trouble concentrating. A November 2004 VA examination reflects diagnosis of major depression in partial remission with some residual psychotic features that did not relate proximately to the service-connected Bell's palsy. The examiner indicated that the depression originally developed because of job-related and financial problems. In October 2020, the Board reopened the claim for service connection for major depressive disorder, and remanded the matter for examination, noting that now current treatment notes listed mood disorder secondary to Bell's palsy. The Board cited to the aforementioned June 2018 and March 2020 VA mental health treatment notes. The resultant December 2020 DBQ contains the opinion that major depressive disorder is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected Bell's palsy. The rationale was that (a) the Veteran's in-service experience of Bell's palsy was cited on his medical history examination, however; the Veteran had denied experiencing depressed mood or excessive worry during the same evaluation, and (b) the Veteran first reported symptoms consistent with a depressive episode over 20 years post the Bell's palsy experience, subsequent to work related stressors in 2000. A December 2021 addendum DBQ addressed whether there was aggravation of the major depressive disorder by the Bell's palsy. The report reflects that the examiner was, "unable to opine regarding a diagnosis and opinion derived from an examination conducted almost 12 months ago given the variability of mental health conditions and functioning over time." That said, they went on to state that there was no objective collateral evidence to suggest aggravation beyond natural progression of major depressive disorder, mild due to Bell's palsy. Medical records that cited "depression due to medical condition, were reviewed, however; inconsistent with DSM V guidelines regarding etiology of mental health conditions secondary to organic conditions." The clinician stated there is lack of empirical evidence citing organic originations of depression due to Bell's palsy. The examiner observed the Veteran's self-report that major depressive disorder symptoms were maintained and aggravated by financial stressors. In support of the claim, the Veteran's attorney in February 2022 submitted a link and a medical literature abstract addressing the emotional impact of facial palsy. It was also argued that the December 2021 addendum DBQ was speculative at best, reasoning that just because a mental health condition is variable does not mean it is not affected by the Bell's palsy. The attorney pointed out that the VA opinion did not address how Bell's palsy makes the Veteran self-conscious and prevents him from wanting to go outside. The Veteran's attorney cited to the fact that medical literature submitted by him supports a strong connection between facial palsy and negative stress, anxiety and depression. The abstract explains that facial palsy is not only a movement disorder but leads also to an emotional and communicative disorder in chronic stage, but also in some patients already during the acute phase of the disease. It notes that the article addresses the current knowledge of the neurobiological and psychological fundamentals on the relation of facial movement and its emotional context. The article addresses the impact of facial palsy on the interaction between facial movement, emotional processing and communicative skills of the patient, indicating that the emotional contagion seems to be reduced in patients with facial palsy. The ability to express emotions seems also to be reduced. Moreover, the patients feel perceived negatively. In fact, most of the expressions of patients with facial palsy are allocated with a negative affect even when the patients are smiling. Patients with facial palsy react with negative stress, anxiety and depression. The patients avoid social contacts. In turn, this reinforces the communicative disorder. The Board notes that this abstract is readily available online. Significantly, the Veteran submitted a detailed statement about the psychiatric impact of his Bell's palsy in December 2020. He stated that he was forced to resign his full-time job delivering mail with the United States Postal Service which he had held for 20 years. He noted that the Bell's palsy caused the side of his face and nose to twitch like a rabbit's nose. When he went out on the job, some people would tease him and others would make public comments or state in soft but audible voices, "look at his face." He had numerous problems and run-ins with co-workers. When he would box up his mail for delivery, they would call him Mr. Twitch or Rabbit or Pinocchio. They would say they could tell when he was lying because he would twitch. There were verbal and physical altercations and he grew so mad over the teasing that he was forced to seek psychiatric counseling. The condition and these complications ultimately forced him to retire. Ultimately, the Veteran's assertions are candid, not inconsistent with the record and are assessed as credible. The Veteran has presented adequate lay evidence about how the documented Bell's palsy has made him feel sad, angry, reclusive and depressed. He has presented adequate lay testimony to show that Bell's palsy has had a negative effect on his self-image and his desire to go out in public. The VA treatment records do reflect the active problems still include mood disorder due to Bell's palsy. See, e.g., VA March 2021 primary care note. Moreover, the abstract supports that people who experience the negative reactions to facial paralysis described by the Veteran can become depressed. The Veteran clearly explained this is what happened in his situation. The Board acknowledges the VA psychologist's December 2020 and 2021 negative opinions, and particularly the observation that medical records that cited depression due to medical condition, were reviewed, but are inconsistent with DSM V guidelines regarding etiology of mental health conditions secondary to organic conditions. However, the Board finds that the detailed statement from the Veteran and the abstract submitted by the Veteran's attorney to be, collectively, competent, relevant and probative as to the issue of whether the major depressive disorder is proximately due to or the result of the Bell's palsy as contemplated within the meaning of 38 C.F.R. § 3.310. The Board notes that the Veteran has basically stated that he became depressed and angry with his coworkers and with the public who mocked him for his residuals of service-connected facial paralysis. The Board cannot disassociate that logical connection, under the unique facts of this case, between the current major depressive disorder and Bell's palsy. The Veteran is competent to state he felt sad and angry due to the reactions he received. The abstract strongly suggests there can be a connection between facial paralysis such as the Veteran has and psychiatric problems such as he described. Also, it is inherently logical that there would be a financial stressful component to the situation. The Board does not find the Veteran's report of such to be contrary to its findings in light of the totality of the unique circumstances in this case. Based on the evidence of record, including the evidence highlighted above, the Board finds that the evidence is approximately balanced regarding whether the major depressive disorder is due to his service-connected Bell's palsy. The benefit-of-the-doubt doctrine applies. 38 U.S.C. § 5107(b), Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). As such, service connection is granted for the Veteran's major depressive disorder as secondary to his service-connected Bell's palsy. See 38 C.F.R. § 3.310. REASONS FOR REMAND 2. Entitlement to TDIU. The Veteran argues that TDIU is warranted due to his multiple service-connected disabilities, and he specifically asserts that major depressive disorder has caused a tremendous occupational impact. He explained that the twitching of his face caused him to lose his job at the post office, describing how people made fun of him and misunderstood his actions due to the impact of the Bell's palsy on his face. This caused him to have what he described as emotional and psychiatric problems and he stopped going out in public and became angry. See December 2020 Veteran letter. As the Veteran is now service-connected for major depressive disorder, secondary to his Bell's palsy, the issue of TDIU may be dependent on the rating assigned for major depressive disorder. As such, the inextricably intertwined issue of TDIU is remanded for consideration in light of the grant of service connection. The matters are REMANDED for the following action: Readjudicate the issue of entitlement to TDIU in light of the grant of service connection of major depressive disorder in this decision, and any rating assigned by the AOJ for major depressive disorder, to include performing any appropriate development pertinent to the Veteran's claim. JARRETTE A. MARLEY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Rippel, 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.