Citation Nr: 0417844	
Decision Date: 07/02/04    Archive Date: 07/14/04

DOCKET NO.  02-08 776	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office 
Center in Wichita, Kansas


THE ISSUE

Entitlement to service connection for intention tremors.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Carol L. Eckart


INTRODUCTION

The veteran served on active duty from September 1974 to 
September 1978.

This case comes before the Board of Veterans' Appeals (Board) 
from a rating decision of July 2001 from the Regional Office 
(RO) of the Department of Veterans Affairs (VA), in Wichita, 
Kansas.

In May 2003 the veteran testified at a hearing held before 
this Veterans Law Judge at the RO.  


FINDINGS OF FACT

1.  The evidence reflects that the veteran's tremor disorder, 
currently diagnosed as benign essential tremor, preexisted 
service, but is equivocal as to whether it was congenital in 
nature.

2.  The evidence reflects that the tremor disorder underwent 
a permanent increase in severity during service.


CONCLUSION OF LAW

A tremor disorder, diagnosed as benign essential tremor was 
as likely as not aggravated by active service. 38 U.S.C.A. §§ 
1131, 1153, 5102, 5103, 5103A, 5106, 5107 (West 2002); 38 
C.F.R. §§ 3.102, 3.303, 3.306 (2003).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran contends that his tremor disorder is the result 
of his military service.  He alleged in his hearing testimony 
of May 2003 that he began having hand tremors in the 1970's 
while in the service.  He denied having trouble with his 
hands prior to entering the military in his hearing 
testimony.  He testified that the tremors increased after he 
left the military.

The veteran's September 1974 entrance examination is negative 
for any findings or complaints of tremors or any sort of 
nervous system problems.  Service medical records reflect 
that the veteran was seen in September 1975 for complaints of 
his hands shaking, especially when trying to write or do fine 
work.  There was no evidence of disease.  An October 1975 
treatment note revealed complaints of "life long" nervous 
shaking in the hands, most noted when doing fine movements 
such as writing.  He was noted to be a heavy coffee drinker 
and light smoker.  He was instructed to cut out caffeine and 
smoking and return in three weeks for a recheck.  

In September 1976, he was noted to have been seen many times 
for complaints of fine tremors in his hands, with poor 
writing and inability to do fine movements in the machine 
shop where he worked.  His father was said to have similar 
problems.  He was noted to have stopped smoking and caffeine 
without significant improvement.  Neurological exam showed 
fine tremor of the hands.  The impression was familial 
tremor.  He was referred to neurology in the same month and 
the neurology department noted a history of movement disorder 
since childhood.  Onset was uncertain, was not associated 
with an illness and had remained unchanged.  The tremors were 
noted to be limited to the hands and worsened with activities 
such as painting or working with machines.  They were said to 
be changing for the worse, as he could no longer write.  His 
father was noted to have a tremor problem, but no other 
family members.  The impression rendered was action tremor 
that seemed to be familial in nature without other 
neurological manifestations.  

The report of a May 2001 VA examination reflects that the 
claims file was reviewed, with a history of treatment shown 
in service for hand tremors.  The examiner noted that a 
handwriting sample taken in September 1976 appeared normal, 
although a straight line drawn showed mild tremulousness.  
Also noted in the service records was a mild finger to nose 
tremor.  The examiner apparently reviewed an examination 
report from June 1997 that revealed a similar history to that 
shown in this report.  This examination was said to show 
finger to nose tremor  and sustention tremor, indicating the 
presence of tremor with outstretched hands.  A history of 
taking propranolol was noted.  The history of the veteran 
mentioning a similar tremor in his father in service was 
noted.  

The veteran's medical history involved complaints of the 
tremor having been present since the mid 1970's.  It was said 
to have been progressively worsening, but minimally so.  The 
veteran tended to also refer to his tremors as 
"nervousness" and he indicated that it was much more so on 
his right side.  The tremors were noted to affect his ability 
to perform work as a material handler and do other tasks.  
The left hand had minimal tremors, but he also used his left 
hand to try to steady his right hand.  The veteran gave a 
history of the tremors having caused adverse employment 
actions in the past and also indicated that they affected him 
socially.  He indicated that drinking alcohol caused his 
tremors to stop.  Again the history of his father having a 
tremor problem was noted, but the veteran also mentioned that 
his father had other problems and so he wasn't sure whether 
his father's tremor was the same type as his.  

On physical examination, a minimal tremor was noted on finger 
to nose testing on the right hand.  The tremor was also 
brought out on touching the center of a 1-centimeter circle.  
Less of a tremor was noted on the left hand, but it was 
noticeable.  The veteran could write his name normally, as 
compared to hand writing samples in the 1980's and pen 
capping was normal.  There did appear to be a slightly 
noticeable waviness of vertical lines when he wrote his name.  
A sine wave copy clearly showed a tremor prominent at 
upstroke of sine wave.  It was prominent but of minimal 
amplitude.  No cogwheel rigidity or ataxia was present.  
Reflexes were 1/2 in the upper extremities, with slightly 
greater prominence at the right biceps.  Lower extremity 
examination yielded no significant findings.  He was able to 
unbutton a shirt and remove shoes and socks normally. 

The examiner in the May 2001 VA examination gave an onset 
time for the veteran's tremors as some time in the mid 
1970's.  The course was very slightly progressive.  The 
tremors were noted to be prominent when the veteran was 
stressed.  The diagnosis was intention tremor.  The tremor 
appeared to interfere most with activities in which quick and 
fine movements were needed.  The examiner opined that the 
tremor was slightly worse as compared to 25 years ago.

In May 2003, the veteran's mother stated that she was widowed 
from the veteran's father and did not know the veteran's 
father to have any sort of "nervous condition" as long as 
he lived.  She also stated that the veteran did not have any 
shaking in his hand prior to entering the service, but did 
have a "nervous condition" after he got out of the 
military.  

In March 2004, the claims file was reviewed by a VA 
neurologist, pursuant to a written request from the Board.  
This examiner noted that review of the file included the 
veteran's sworn testimony, his mother statements and the 
medical records.  The examiner opined that based on the 
veteran's military records and statements, the neurological 
diagnosis is "benign essential tremor" which is an 
exaggerated tremor of unknown etiology.  Some of these 
tremors were familiar in nature and as such are considered 
congenital disorders.  There was no clear cut statement in 
the records that the veteran's father had an essential tremor 
and there were no medical records of the veteran's father 
showing he had an essential tremor.  The veteran's mother 
stated that her husband, the veteran's father, never had a 
tremor.  The veteran's statement at the Review Board was 
noted to say that his father might have had a tremor, but 
also indicated that there were other medical problems and he 
would need to speak to his mother before confirming knowledge 
of his father's medical condition. 

The VA neurologist in the March 2004 letter indicated that 
the veteran's response to alcohol solidified the diagnosis 
and that laboratory analysis failed to demonstrate other 
causes of an exaggerated physiological tremor.  The examiner 
noted that several factors must be taken into consideration 
when offering an opinion and interpretations of what is 
documented.  The most telling was his entrance physical and 
history taken in September 1974.  There was no mention of a 
tremor or any documentation of a tremor on physical 
examination, the procedure of which was said to be a 
stressful one and thus would be more likely to exacerbate a 
physiological tremor.  This did not happen during this 
examination.  The initial presentation of tremors was said to 
have happened around the summer of 1976, when he was advised 
to stop ingestion of coffee and smoking.  The examiner 
pointed out that caffeinated beverages were known to 
exacerbate a physiological tremor.  The examiner also noted 
that the record indicated that the veteran's tremor was 
abated by drinking alcohol and also that a trial of 
propanolol was attempted, but he couldn't tolerate the side 
effects.  

The examiner opined that following review of the case and the 
documentation provided, the veteran was suffering from benign 
essential tremor, possibly familial in nature.  His initial 
presentation was in the service, exacerbated by conditions of 
his workplace.  The question of whether the tremor was 
familial in nature was controversial in that there was 
conflicting evidence.  The examiner could not state with 
certainty that the veteran's tremor was a pre existing 
condition.  Rather it appeared to be a condition that 
presented during his military service, exacerbated by the 
work/stress environment there and progressed clinically as a 
familial or non-familial tremor.  

Service connection may be established for a disability 
resulting from personal injury suffered or disease contracted 
in the line of duty or for aggravation of preexisting injury 
suffered or disease contracted in the line of duty.  38 
U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2003).  
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) (2003).  Where 
there is a chronic disease shown as such in service or within 
the presumptive period under § 3.307 so as to permit a 
finding of service connection, subsequent manifestations of 
the same chronic disease at any later date, however, remote, 
are service connected, unless clearly attributable to 
intercurrent causes. 38 C.F.R. § 3.303(b) (2003).  This rule 
does not mean that any manifestations in service will permit 
service connection.  To show chronic disease in service there 
is required a combination of manifestations sufficient to 
identify the disease entity, and sufficient observation to 
establish chronicity at the time as distinguished from merely 
isolated findings or a diagnosis including the word 
"chronic".  When the disease entity is established, there is 
no requirement of evidentiary showing of continuity.  When 
the fact of chronicity in service is not adequately 
supported, then a showing of continuity after discharge is 
required to support the claim. 38 C.F.R. § 3.303(b) (2003).

Under 38 C.F.R. § 3.303(c) (2003) congenital or developmental 
disorders, including refractive errors of the eyes, are not 
diseases or injuries for the purpose of VA disability 
compensation.

The Court has held that, in order to prevail on the issue of 
service connection, there must be medical evidence of a (1) 
current disability; (2) medical, or in certain circumstances, 
lay evidence of inservice incurrence or aggravation of a 
disease or injury; and (3) medical evidence of a nexus 
between the claimed inservice disease or injury and the 
present disease or injury.  Hickson v. West, 12 Vet. App. 
247, 253 (1999); see also Pond v. West, 12 Vet. App. 341, 346 
(1999).

The Board must assess the credibility and weight of all the 
evidence, including the medical evidence, to determine its 
probative value, accounting for evidence which 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); Gilbert v. Derwinski, 1 Vet. App. 
49 (1990).  Equal weight is not accorded to each piece of 
evidence contained in the record; every item of evidence does 
not have the same probative value.

A veteran will be considered to have been in sound condition 
when examined, accepted and enrolled for service, except as 
to defects, infirmities, or disorders noted at entrance into 
service, or where clear and unmistakable (obvious or 
manifest) evidence demonstrates that an injury or disease 
existed prior thereto. 38 U.S.C.A. § 1111 (West 2002); 38 
C.F.R. § 3.304(b) (2003).  In VAOPGCPREC 3-2003, VA's General 
Counsel held that to rebut the presumption of sound condition 
under 38 U.S.C. § 1111, VA must show by clear and 
unmistakable evidence both that the disease or injury existed 
prior to service and that the disease or injury was not 
aggravated by service.  The claimant is not required to show 
that the disease or injury increased in severity during 
service before VA's duty under the second prong of this 
rebuttal standard attaches.  It was concluded that the 
provisions of 38 C.F.R. § 3.304(b) are inconsistent with 38 
U.S.C. § 1111 insofar as § 3.304(b) states that the 
presumption of sound condition may be rebutted solely by 
clear and unmistakable evidence that a disease or injury 
existed prior to service.  It was held that 38 C.F.R. § 
3.304(b) is therefore invalid. VAOPGCPREC 3-2003 (2003).

A preexisting injury or disease will be considered to have 
been aggravated by active service, where there is an increase 
in disability during such service, unless there is a specific 
finding that the increase in disability is due to the natural 
progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 
C.F.R. § 3.306(a) (2003).  Aggravation may not be conceded 
where the disability underwent no increase in severity during 
service on the basis of all the evidence of record pertaining 
to the manifestations of the disability prior to, during, and 
subsequent to service.  38 U.S.C.A. § 1153 (West 2002); 38 
C.F.R. § 3.306(b) (2003).

As shown above, there is both positive and negative evidence 
in this matter.

The opinion from the VA physician in March 2004 suggests that 
it was likely as not that the veteran's tremor disorder, 
diagnosed as benign essential tremor, presented in service 
and was aggravated and exacerbated by service.  The service 
medical records show that the tremors were first noted in 
service, in October 1975.  

The unfavorable evidence consists of the evidence, including 
the service medical records that suggest that the veteran's 
tremor disorder was familial in nature.  There are some 
notations indicating that his father had a tremor disorder, 
but was never clear as to whether it was the same type.  The 
veteran's mother denied that the father had a tremor 
disorder.  At best, the evidence is equivocal as to whether 
the father had a tremor disorder that was the same as his 
son's.  Thus the evidence suggests that it is as likely as 
not that the veteran's tremor disorder was not congenital in 
nature and that even if preexisting service, it was 
aggravated by service.  

In Alemany v. Brown, 9 Vet. App. 518 (1996), the Court noted 
that in light of the benefit of the doubt provisions of 38 
U.S.C.A. § 5107(b), an accurate determination of etiology is 
not a condition precedent to granting service connection; nor 
is "definite etiology" or "obvious etiology."  In Gilbert v. 
Derwinski, 1 Vet. App. 49 (1990), the Court stated that "a 
veteran need only demonstrate that there is an 'approximate 
balance of positive and negative evidence' in order to 
prevail."  In Gilbert, the Court specifically stated that 
entitlement need not be established beyond a reasonable 
doubt, by clear and convincing evidence, or by a fair 
preponderance of the evidence.  Under the benefit of the 
doubt doctrine established by Congress, when the evidence is 
in relative equipoise, the law dictates that the veteran 
prevails.  Thus, to deny a claim on its merits, the 
preponderance of the evidence must be against the claim.  

Thus, in view of this evidence, and with application of the 
benefit of the doubt rule, the Board concludes that the 
veteran's tremor disorder, diagnosed as benign essential 
tremors was aggravated by service.  Accordingly, service 
connection is granted for a tremor disorder.

The Board has considered the veteran's claim with respect to 
the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 
5100 et. Seq. (West 2002).  Given the favorable outcome as 
noted above, no conceivable prejudice to the veteran could 
result from this adjudication.  See Bernard v. Brown, 4 Vet. 
App. 384, 393 (1993).  Thus the additional delay in the 
adjudication of this issue which would result from a remand 
solely to allow the RO to apply the VCAA would not be 
justified.


ORDER

The claim for entitlement to service connection for benign 
essential tremors is granted.  




	                        
____________________________________________
	CHERYL L. MASON
	Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs

YOUR RIGHTS TO APPEAL OUR DECISION

The attached decision by the Board of Veterans' Appeals (BVA or Board) is 
the final decision for all issues addressed in the "Order" section of the 
decision.  The Board may also choose to remand an issue or issues to the 
local VA office for additional development.   If the Board did this in your 
case, then a "Remand" section follows the "Order."  However, you cannot 
appeal an issue remanded to the local VA office because a remand is not a 
final decision. The advice below on how to appeal a claim applies only to 
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do 
anything.  We will return your file to your local VA office to implement 
the BVA's decision.  However, if you are not satisfied with the Board's 
decision on any or all of the issues allowed, denied, or dismissed, you 
have the following options, which are listed in no particular order of 
importance: 
?	Appeal to the United States Court of Appeals for Veterans Claims 
(Court)
?	File with the Board a motion for reconsideration of this decision
?	File with the Board a motion to vacate this decision 
?	File with the Board a motion for revision of this decision based on 
clear and unmistakable error. 
Although it would not affect this BVA decision, you may choose to also: 
?	Reopen your claim at the local VA office by submitting new and 
material evidence. 
There is no time limit for filing a motion for reconsideration, a motion to 
vacate, or a motion for revision based on clear and unmistakable error with 
the Board, or a claim to reopen at the local VA office.  None of these 
things is mutually exclusive - you can do all five things at the same time 
if you wish.  However, if you file a Notice of Appeal with the Court and a 
motion with the Board at the same time, this may delay your case because of 
jurisdictional conflicts. If you file a Notice of Appeal with the Court 
before you file a motion with the BVA, the BVA will not be able to consider 
your motion without the Court's permission. 

How long do I have to start my appeal to the Court?  You have 120 days from 
the date this decision was mailed to you (as shown on the first page of 
this decision) to file a Notice of Appeal with the United States Court of 
Appeals for Veterans Claims.  If you also want to file a motion for 
reconsideration or a motion to vacate, you will still have time to appeal 
to the Court.  As long as you file your motion(s) with the Board within 120 
days of the date this decision was mailed to you, you will then have 
another 120 days from the date the BVA decides the motion for 
reconsideration or the motion to vacate to appeal to the Court.  You should 
know that even if you have a representative, as discussed below, it is your 
responsibility to make sure that your appeal to Court is filed on time.

How do I appeal to the United States Court of Appeals for Veterans Claims?  
Send your Notice of Appeal to the Court at:

Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950

You can get information about the Notice of Appeal, the procedure for 
filing a Notice of Appeal, the filing fee (or a motion to waive the filing 
fee if payment would cause financial hardship), and other matters covered 
by the Court's rules directly from the Court. You can also get this 
information from the Court's web site on the Internet at 
www.vetapp.uscourts.gov, and you can download forms directly from that 
website.  The Court's facsimile number is (202) 501-5848. 

To ensure full protection of your right of appeal to the Court, you must 
file your Notice of Appeal with the Court, not with the Board, or any other 
VA office. 

How do I file a motion for reconsideration? You can file a motion asking 
the BVA to reconsider any part of this decision by writing a letter to the 
BVA stating why you believe that the BVA committed an obvious error of fact 
or law in this decision, or stating that new and material military service 
records have been discovered that apply to your appeal. If the BVA has 
decided more than one issue, be sure to tell us which issue(s) you want 
reconsidered. Send your letter to: 
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

VA 
FORM
JUN 
2003 
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4597
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CONTINUED



Remember, the Board places no time limit on filing a motion for 
reconsideration, and you can do this at any time. However, if you also plan 
to appeal this decision to the Court, you must file your motion within 120 
days from the date of this decision. 

How do I file a motion to vacate? You can file a motion asking the BVA to 
vacate any part of this decision by writing a letter to the BVA stating why 
you believe you were denied due process of law during your appeal. For 
example, you were denied your right to representation through action or 
inaction by VA personnel, you were not provided a Statement of the Case or 
Supplemental Statement of the Case, or you did not get a personal hearing 
that you requested. You can also file a motion to vacate any part of this 
decision on the basis that the Board allowed benefits based on false or 
fraudulent evidence.  Send this motion to the address above for the 
Director, Management and Administration, at the Board.  Remember, the Board 
places no time limit on filing a motion to vacate, and you can do this at 
any time. However, if you also plan to appeal this decision to the Court, 
you must file your motion within 120 days from the date of this decision. 

How do I file a motion to revise the Board's decision on the basis of clear 
and unmistakable error? You can file a motion asking that the Board revise 
this decision if you believe that the decision is based on "clear and 
unmistakable error" (CUE).  Send this motion to the address above for the 
Director, Management and Administration, at the Board. You should be 
careful when preparing such a motion because it must meet specific 
requirements, and the Board will not review a final decision on this basis 
more than once. You should carefully review the Board's Rules of Practice 
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified 
representative before filing such a motion. See discussion on 
representation below. Remember, the Board places no time limit on filing a 
CUE review motion, and you can do this at any time. 

How do I reopen my claim? You can ask your local VA office to reopen your 
claim by simply sending them a statement indicating that you want to reopen 
your claim.  However, to be successful in reopening your claim, you must 
submit new and material evidence to that office. See 38 C.F.R. 3.156(a). 

Can someone represent me in my appeal?  Yes. You can always represent 
yourself in any claim before VA, including the BVA, but you can also 
appoint someone to represent you.  An accredited representative of a 
recognized service organization may represent you free of charge.  VA 
approves these organizations to help veterans, service members, and 
dependents prepare their claims and present them to VA. An accredited 
representative works for the service organization and knows how to prepare 
and present claims. You can find a listing of these organizations on the 
Internet at: www.va.gov/vso.  You can also choose to be represented by a 
private attorney or by an "agent." (An agent is a person who is not a 
lawyer, but is specially accredited by VA.) 

If you want someone to represent you before the Court, rather than before 
VA, then you can get information on how to do so by writing directly to the 
Court.  Upon request, the Court will provide you with a state-by-state 
listing of persons admitted to practice before the Court who have indicated 
their availability to represent appellants.  This information is also 
provided on the Court's website at www.vetapp.uscourts.gov. 

Do I have to pay an attorney or agent to represent me?  Except for a claim 
involving a home or small business VA loan under Chapter 37 of title 38, 
United States Code, attorneys or agents cannot charge you a fee or accept 
payment for services they provide before the date BVA makes a final 
decision on your appeal. If you hire an attorney or accredited agent within 
1 year of a final BVA decision, then the attorney or agent is allowed to 
charge you a fee for representing you before VA in most situations.  An 
attorney can also charge you for representing you before the Court.  VA 
cannot pay fees of attorneys or agents. 

Fee for VA home and small business loan cases:  An attorney or agent may 
charge you a reasonable fee for services involving a VA home loan or small 
business loan.  For more information, read section 5904, title 38, United 
States Code. 

In all cases, a copy of any fee agreement between you and an attorney or 
accredited agent must be sent to: 

Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

The Board may decide, on its own, to review a fee agreement for 
reasonableness, or you or your attorney or agent can file a motion asking 
the Board to do so. Send such a motion to the address above for the Office 
of the Senior Deputy Vice Chairman at the Board. 


VA 
FORM
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2003 
(RS) 
 
4597
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