Veterans Medical Advisor

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                         Case from Bureau of Veterans Appeals

Dr. Bash is a veteran of


Citation Nr: 0706719

Decision Date: 03/07/07 | Archive Date: 03/13/07

DOCKET NO. 93-00 412

On appeal from the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia

THE ISSUES

1. Entitlement to service connection for Lyme disease.

2. Entitlement to service connection for headaches as secondary to Lyme disease.

3. Entitlement to service connection for Bell's palsy as secondary to Lyme disease.

4. Entitlement to service connection for psychiatric disability as secondary to Lyme disease.

5. Entitlement to service connection for arthritis as secondary to Lyme disease.

REPRESENTATION

Veteran represented by: Mark R. Lippman, Attorney

WITNESSES AT HEARING ON APPEAL

Appellant and his sister

ATTORNEY FOR THE BOARD

L. Cramp, Counsel

INTRODUCTION

The appellant had active duty for training (ADT) from May 17, 1982, to August 13, 1982, and from July 20, 1985, to August 3, 1985.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Jurisdiction over the case was subsequently transferred to the RO in Roanoke, Virginia.

These matters were previously before the Board on numerous occasions, and were most recently adjudicated in a decision dated in July 2004. In that decision, the Board denied service connection for Lyme disease and conditions claimed as secondary to Lyme disease. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (the Court). In an Order dated in March 2006, the Court vacated the Board's July 2004 decision, and remanded these matters to the Board for development consistent with the Court's Order.

The issues of entitlement to service connection for headaches, Bell's palsy, psychiatric disability, and arthritis, claimed as secondary to Lyme disease, are addressed in the REMAND that follows the order section of this decision.

FINDINGS OF FACT

Lyme disease is etiologically related to service.

CONCLUSION OF LAW

Lyme disease was incurred as a result of the appellant's active military service. 38 U.S.C.A. §§ 101, 106, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2006).

REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty or active duty for training. 38 U.S.C.A. §§ 101, 106, 1131 (West 2002); 38 C.F.R. §§ 3.6, 3.303 (2006).

Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Direct service connection may not be granted without medical evidence of a current disability, medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Analysis

The appellant did not have any extended period of active duty, but had two periods of active duty for training, from May 17, 1982, to August 13, 1982, and from July 20, 1985, to August 3, 1985. The Board notes that the claims files do not contain the originals of the appellant's service records, but do contain photocopies of those records. Although the claims files dos contain a service department records envelope, the envelope contains no records, the original contents apparently having been filed separately by the RO. This has led to some confusion and speculation as to whether one of the service medical records may have been altered, and at what point that might have occurred.

The document in question is an Individual Sick Slip, DD Form 689, dated July 22, 1985. In the section for the Unit Commander's remarks are two entries. One entry reads: "knee left Injured." The entry below reads: "Insect bite's Rash!" In the section for the Medical Officer's remarks, no mention of an insect bite was made. The March 2000 VA physician noted the "different handwriting" of the insect bite entry and raised a "question of authenticity" with respect to this notation. This matter was also discussed by the Board in its July 2004 decision, although it was ultimately not determinative with respect to the Board's denial of the appeal.

After a thorough review of the record, the Board concludes that there is no appropriate basis for finding that the July 1985 DD Form 689 is inaccurate or has been altered. In so concluding, the Board observes that there is an overall lack of stylistic coherency throughout the note, not just in the notation of an insect bite. The note's author appears to have capitalized certain words at random, and his use of print and cursive script alternates from one word to the next. The Board also observes that the March 2000 VA reviewing physician has not demonstrated any particular expertise in handwriting analysis.

More significant than stylistic issues, the Board notes that the first copy of the DD Form 689 received by the RO appears to have been received directly from the appellant's reserve unit in December 1990, in response to a request from the RO. The RO, in its original January 1991 decision, simply noted the receipt of "[s]ervice records from 7-20-85 to 10-17-90," and noted that they showed an insect bite rash in July 1985. The authenticity of the DD Form 689 was not questioned by the RO at that time. It appears that this particular document has remained within the custody of either the appellant's military unit or VA at all times. The Board's assumption must accordingly be that the record contained in the claims file is an unaltered photocopy.

The contents of the DD Form 689 are also supported by other evidence. The appellant and several of his fellow servicemen have stated that ticks were a frequent problem during the summer of 1985, and that they personally observed ticks being removed from the appellant. In a June 1997 letter, an individual who served with the appellant during annual training in 1985 at Fort McCoy stated that he remembered the appellant having a rash with two circles around it on his thigh. These statements are competent evidence that the appellant had ticks and a rash on his body during his period of ADT. They are also consistent with one another and are deemed credible by the Board.

There appears to be no debate in the medical evidence that the appellant was diagnosed with Lyme disease in 1990. This leaves the question of a causative relationship or medical nexus between the July 1985 insect bite and the 1990 diagnosis and any current residuals of Lyme disease.

On the matter of medical nexus, there is a substantial conflict in the evidence. VA reviewing physicians in June 1996 and March 2000 appear to have concluded that the appellant's Lyme disease did not result from a 1985 tick bite. A VA infectious disease specialist and a private physician, Craig N. Bash, M.D., have both stated opinions nominally in favor of such a relationship. For the reasons set out below, and resolving any doubt in the appellant's favor, the Board finds that the appellant's Lyme disease resulted from the July 1985 in-service insect bite.

In June 1996, the RO obtained a medical opinion from a VA physician who reviewed the claims folders. The physician found "no evidence of an exanthem [rash] of Lyme disease or clinical evidence of Lyme disease during or within a clinically relevant period of time after the appellant's period of ADT in 1985. He noted that the appellant reported a history of a bull's eye exanthem in 1990, and found that this would have been compatible with acute Lyme disease if it had been present. Contrary to the finding of the June 1996 reviewing physician, and as noted above, the record does contain clinical evidence of treatment in July 1985 for an insect bite rash. This notation (DD Form 689) was not discussed by the June 1996 reviewing physician, although it was contained in the claim file at that time his opinion was prepared. In the Board's view, this diminishes the probative value of the June 1996 opinion, as the reviewing physician appears to have either overlooked or misinterpreted vital evidence. Indeed, in light of this evidence, the physician's finding that clinical evidence of a bull's eye rash would have been compatible with Lyme disease, if it had been present, arguably supports the appellant's claim.

Another record review and opinion was obtained in March 2000. The reviewing physician did discuss the July 1985 DD Form 689, however, he questioned the authenticity of the document. This is a finding of fact within the purview of VA adjudicators, and completely outside the bounds of the medical opinion requested. The Board has concluded that the July 1985 DD Form 689 is authentic and unaltered. The March 2000 physician based his opinion that "it would be difficult to attribute [the appellant's] 1990 and subsequent problems to the tick bites in 1985" on his finding that there is a "lack of documentation of symptoms from 1985 until 1990." However, he did not discuss whether the rash noted in the July 1985 sick slip constituted such documentation of symptoms, leading the Board to conclude that he in fact dismissed the July 1985 DD Form 689 as unauthentic. In light of the Board's finding above, this significantly reduces the probative value of the opinion.

The June 1996 reviewing physician also noted that Bell's palsy and other complications only developed in 1990, and that it was unlikely that there would have been such a delayed reaction from a July 1985 tick bite. This opinion was shared by the March 2000 physician. However, this finding was disputed by Dr. Bash, who cited to a treatise on infectious disease, noting that Stage 3 infection can occur years after onset of Lyme disease, sometimes following long periods of latent infection. A September 1990 infectious disease consultation report by Dr. Marvin E. Lauwasser notes that the usual pattern of Bell's palsy is as a stage 2 manifestation of Lyme disease within the first few months of illness. However, he noted that it was not impossible for Bell's palsy to have developed years later.

Further complicating matters is that there is conflicting evidence that the appellant may have been bitten by a tick in 1988, subsequent to his last period of ADT. In an undated report from a private physician to the Wisconsin State Epidemiologist of the Wisconsin Division of Health, it was reported that the appellant had arthralgia/myalgia which began in 1988, and that a tick bite occurred in 1988, a month prior to illness. Lyme disease serology tests, performed in March 1990, revealed minimally elevated serum Lyme titers. A handwritten annotation showed, "Tick Bite: ~ 2 yrs ago. Shot?" When seen by a private physician in April 1990, the appellant related that he had been bit by a tick two years previously and, as a result, he had developed a rash which started out as a small dot, grew over the lower portions of his leg, and had a raised border with a central area being cleared. However, at his May 1992 hearing, the appellant testified that he had not been bitten by a tick at any time after 1985, and that the 1988 incident occurred on a trip to the Bahamas, and involved a simple rash. There was no bull's eye rash or tick bite involved.

In essence, a determination as to whether the appellant was bitten subsequent to 1985 is unnecessary. The evidence indicates that he was bitten in 1985, and that a rash developed at that time. It is only necessary that the competent and probative evidence of record relates the appellant's Lyme disease to the 1985 insect bite. The primary evidence favoring the appellant consists of a November 2000 report from Dr. Bash, who concluded that the appellant's Lyme disease was caused by his in-service insect bite because the appellant was in a known endemic area, had documented tick bites, had a rash (Bull's eye), which was typical for Lyme disease, had an acute illness consistent with the early stages of Lyme disease, had confirmatory positive high Lyme disease, had been diagnosed and treated for Lyme disease, and had chronic complaints, which were not inconsistent with the chronic stages of Lyme disease. The Board also notes that in a VA infectious disease examination report dated in October 1990, the VA examiner stated that the appellant had "probably" been exposed to a tick bite at Fort McCoy in 1985 and that the sequelae that he experienced "may indeed be related to Lyme's disease."

The October 1990 VA opinion is essentially inconclusive with respect to medical nexus. While there are certainly flaws in Dr. Bash's opinion, as pointed out by the Board in previous decisions, it is certainly conclusive as to medical nexus, and it is well explained and defended with respect to the conflicting opinions. Although Dr. Bash's opinion does not directly address the apparent 5-year delay in the appellant's initial infection and his episode of Bell's palsy, in the Board's view, Dr. Bash's opinion presents a scenario that is at least as plausible as the June 1996 and March 2000 opinions, i.e., post-service (1988-90) incurrence of Lyme disease. The Board accordingly finds that the evidence for and against the question of medical nexus is in approximate balance. In such cases, the benefit of the doubt must go to the appellant. It is therefore the Board's conclusion, based on the evidence of record, and for the reasons and bases discussed above, that entitlement to service connection for Lyme disease is in order.

ORDER

Entitlement to service connection for Lyme disease is granted.

REMAND

The issues of entitlement to service connection for headaches, Bell's palsy, psychiatric disability, and arthritis, claimed as secondary to Lyme disease, have consistently been denied by both the RO and the Board on the basis that service connection was not in effect for Lyme disease, and thus service connection for secondary conditions could not be granted. As service connection for Lyme disease has been granted in the decision above, the RO should first be given the opportunity to fully develop and adjudicate the secondary service connection claims before the Board addresses those claims. See Bernard v. Brown, 4 Vet. App. 384 (1993) [when the Board addresses in its decision a question that has not been addressed by the RO, it must consider whether the appellant has been given adequate notice to respond and, if not, whether he has been prejudiced thereby]. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).

Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions:

1. The RO or the AMC should send the appellant a letter requesting him to provide any pertinent evidence in his possession and any outstanding medical records pertaining to treatment or evaluation of his headaches, Bell's palsy, psychiatric disability, and arthritis, or the identifying information and any necessary authorization to enable VA to obtain such records on his behalf.

2. The RO or the AMC should undertake appropriate development to obtain any pertinent evidence identified but not provided by the appellant. If the RO or the AMC is unsuccessful in its efforts to obtain any such evidence, it should so inform the appellant and his representative and request them to submit the outstanding evidence.

3. The RO or the AMC should also undertake any other development it determines to be warranted, to include obtaining a VA examination and medical opinion if deemed necessary.

4. Then, the RO or the AMC should readjudicate the appellant's claims. If any benefit sought on appeal is not granted to the appellant's satisfaction, he and his attorney should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order.

By this remand, the Board intimates no opinion as to any final outcome warranted.

No action is required of the appellant until he is otherwise notified but he has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999).

This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).




Shane A. Durkin

Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

drbash@doctor.com

______________________

Craig N. Bash M.D., M.B.A.

Neuro-Radiologist and Associate Professor

Uniformed Services School of Medicine

NPI/UPIN-1225123318

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Bethesda, Md 20814

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