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 CONCLUSIONLegal 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).
