Citation Nr: 0815137 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 02-10 170 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUE Entitlement to a rating in excess of 30 percent for an essential tremor. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney WITNESS AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The veteran had active service from April 1991 to May 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2001 rating action in which the RO denied a rating in excess of 30 percent for an essential tremor. The veteran filed a notice of disagreement (NOD) in February 2002, and the RO issued a statement of the case (SOC) in June 2002. The veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in July 2002. In May 2003, the veteran and his spouse testified during a Board hearing before a Veterans Law Judge (VLJ) in Washington, D.C.; a transcript of that hearing is of record. In October 2003, the Board remanded this matter to the RO for further development of the evidence and for due process development. After accomplishing the requested action, the RO continued the denial of the claim in August 2005. Also in August 2005 document, the RO granted service connection for myoclonic dystonia with depressive features, secondary to essential tremor, and assigned a 50 percent rating, granted a total disability rating based on individual unemployability (TDIU), and found the veteran eligible for dependents' educational assistance (DEA). In a February 2006 letter, the Board notified the veteran that the VLJ that conducted the May 2003 hearing was no longer employed with the Board, and that he was entitled to an additional hearing, if he so desired. In a March 2006 response, the veteran requested a Board hearing before a VLJ in Washington, D.C. By letter of April 2006, the Board notified the veteran of a Board hearing that had been scheduled for him in Washington, D.C. for a date in June. The veteran failed to report for the hearing. In June 2006, the Board denied the claim for a rating in excess of 30 percent for an essential tumor. The veteran, in turn, appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In December 2007, counsel for the veteran and the VA Secretary filed a Joint Motion with the Court to vacate and remand the June 2006 Board decision. By Order dated December 2007, the Court granted the Joint Motion, vacating the Board's June 2006 decision and remanding this matter to the Board for further proceedings consistent with the Joint Motion. In April 2008, the veteran's attorney submitted a letter containing additional arguments relating to the matter on appeal. The letter requested that the veteran should be separately rated for myoclonic dystonia and depressive disorder and that he should be granted a TDIU. As the veteran has in fact been granted service connection for myoclonic dystonia and a TDIU, those arguments are moot. To the extent that the veteran's attorney is requesting a separate grant of service connection for depression, that matter is referred to the RO. The other arguments raised by the veteran's attorney in her April 2008 letter are addressed in the decision below. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. Since the May 10, 2001 date of receipt of claim, the veteran's essential tremor has affected the left upper extremity and shoulder and right hand, with some radiation into the torso and lower extremities, and with other objective signs suggestive only of minor pyramidal tract involvement at rest. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for an essential tremor have not been met any time since May 10, 2001. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.124a, Diagnostic Codes 8099- 8004 (2007). R EASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In addition, the Board is aware of the Court's recent decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In Vazquez-Flores, the Court found that, at a minimum, adequate VCAA notice requires that VA notify the claimant that, to substantiate an increased rating claim: (1) the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Id. at 43-44. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, a March 2004 letter provided notice to the veteran regarding what information and evidence was needed to substantiate the claim for a rating in excess of 30 percent for essential tremors, as well as what information and evidence must be submitted by the veteran, what information and evidence would be obtained by VA, and the need for the veteran to advise VA of and to submit any further evidence that is relevant to the claim. The June 2002 SOC (and, later, the August 2005 SSOC) set forth the criteria for higher ratings for the veteran's essential tremor. Specifically, the SOC and SSOC indicated that the veteran's essential tremor was being rated under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8004, applicable to paralysis agitans, each included the note following diagnostic codes 8000 though 8025 pertaining to ascertainable residuals of organic diseases of the central nervous system, and the SSOC included the note preceding these diagnostic codes. The Board finds that this information was sufficient to comply with the Dingess/Hartman requirement of providing the rating criteria for all higher ratings for a disability. After issuance of the March 2004 letter, and opportunity for the veteran to respond, the August 2005 SSOC reflects readjudication of the claim. Hence, the veteran is not shown to be prejudiced by the timing of VCAA-compliant notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the SOC or SSOC, is sufficient to cure a timing defect). Regarding the other Dingess/Hartman notice requirements, the RO has not provided the veteran information as to the assignment of disability ratings or effective dates; however, as the decision herein denies the claim for a rating in excess of 30 percent for an essential tremor, no new disability rating or effective date is being, or is to be, assigned; thus, there is no possibility of prejudice to the veteran under the requirements of Dingess/Hartman. The Board also notes that, while the March 2004 letter provided examples of the types medical and lay evidence that the veteran could submit (or ask VA to obtain) that were relevant to establishing entitlement to a higher rating, it did not comply with the other Vazquez-Flores notice requirements. However, the veteran specifically referred in his February 2002 NOD to the effect that his disability had on his employment and daily life, and indicated that he understood that he had to show through medical evidence a worsening or increase in severity of his disability. Moreover, in his hearing testimony, the veteran described the effect that his disability had on his daily life (pp. 5-6) and his employment (pp. 7-8), his representative at that time indicated why he was entitled to a higher rating under the applicable diagnostic codes (p. 17), and the SOC and SSOC indicated that the veteran's disability rating would be determined by applying relevant diagnostic codes. In these circumstances, any error in not complying with the Vazquez- Flores notice requirements was "cured by actual knowledge on the part of the claimant." See Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir 2007). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent evidence associated with the claims file consists of the veteran's service medical records, post-service private medical records, as well VA outpatient treatment (VAOPT) records and reports of VA examinations. Also of record and considered in connection with the appeal is the transcript of the veteran's Board hearing as well as various written statements submitted by the veteran, his representative, and his attorney, on his behalf. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters on appeal, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error and affirming that the provision of adequate notice followed by a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which provides for ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. Part 4 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2007). The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 (2007); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The parties to the joint motion noted the Court's recent decision in Hart v. Mansfield, 21 Vet. App. 505, 509- 510 (2007). In Hart, the Court found that, because a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time an increased rating claim is filed until a final decision is made, consideration of the possibility of staged ratings in such cases is warranted. See Joint Motion, at 2 (citing Hart). Pursuant to the instructions in the Joint Motion, the analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods since the veteran's increased rating claim was received on May 10, 2001. Historically, the Board notes that the veteran was granted service connection and assigned an initial 30 percent rating for an essential tremor in a March 1994 rating decision. Shortly thereafter, in May 1994, the veteran filed a statement in support of claim (VA Form 21-4138) in which he wrote, "I request reconsideration of my current service- connected disability rating for 'essential tremor' condition due to" medication that prevented him from driving or working. In her April 2008 letter, the veteran's attorney requested that the Board find that this statement be construed as a NOD, and that the veteran's claim therefore be treated as for a higher initial rating rather than one for increase. However, as noted in the case cited by the veteran's attorney, Matthews v. Nicholson, 19 Vet. App. 202 (2005), 38 C.F.R. § 20.201 provides that, to be considered a NOD, a written communication must be in terms that can be reasonably construed as disagreement with a determination "and a desire for appellate review." As the veteran's May 1994 statement did not express a desire for appellate review, the Board finds that it did not constitute a NOD. Hence, the claim is appropriately considered a claim for increase. The veteran's essential tremor has been rated as paralysis agitans under 38 C.F.R. § 4.124a, DCs 8099-8004 (2007). These hyphenated diagnostic codes reflect that there is no diagnostic code applicable to an essential tremor, and this disability has therefore been rated by analogy to paralysis agitans. See 38 C.F.R. §§ 4.20, 4.27 (2007). The minimum rating under DC 8004 is 30 percent. A note preceding the criteria for rating organic diseases of the central nervous system indicates that disabilities from the diseases listed in diagnostic codes 8000 through 8025 and their residuals may be rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function, and that the following should be especially considered: psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc., referring to the appropriate bodily system of the schedule. Partial loss of use of one or more extremities from neurological lesions is to be rated by comparison with the mild, moderate, severe, or complete paralysis of peripheral nerves. Considering the pertinent evidence of record in light of the above-noted criteria, the Board finds that a schedular rating in excess of 30 percent for the veteran's essential tremor is not warranted at any time since May 10, 2001. On November 2001 VA neurological examination, strength was normal in the sternocleidomastoids. Motor testing showed occasional vesiculation involving the left triceps. No vesiculations were detected over the upper back. The veteran had some give-way weakness of hand grip. Myotonia was not identified. Sensation was intact. Reflexes were hypoactive but symmetric, and plantar reflexes were flexor. There was incoordination on finger-to-nose testing, as well as mild incoordination on heel-to-knee testing. The veteran arose from a wheelchair and ambulated without assistive devices. He could stand on his toes and heels, but had some trouble tandem walking. The impressions included dystonia of unclear etiology, and history of vesiculations versus myokymia. The examiner commented that the veteran appeared to have some incoordination of the arms, but no widespread vesiculations, although he did have some involving the left triceps. He also had some give-way weakness involving the muscles of the upper extremities, but he was able to ambulate without assistive devices. On December 2001 VA outpatient examination, the veteran complained of worsening tremors. Current examination showed some twitching in the face, neck, platysma, shoulders, arms, and hands. The pedal pulses were palpated without difficulty. He had to hold a cup of coffee with both hands, and had somewhat of a clawing or drawing of his fingers when he sat at rest. Reflexes were brisk bilaterally in the upper and lower extremities. No more than a couple beats of clonus were appreciated in the ankles. The veteran had difficulties with finger-to-nose and heel-to-shin testing. There was full range of motion of the shoulders, elbows, wrists, fingers, hips, knees, ankles, and feet, and no contractures were noted. He had tremors, muscle twitching, and spasms of a modest to severe degree in the shoulders, chest, abdomen, and legs, more so in the left upper leg than the right. When lying on the examination table he was at rest, and he appeared dynamic with movement, although he had no choreoform movement, and it was more with just lying, with vesiculations and twitching. The assessment was myoclonic dystonia. On January 2002 VA outpatient examination, the examiner noted that the myoclonic dystonia was causing the veteran to have clumsiness, and he needed a right leg knee-ankle-foot brace. He currently had myoclonic dystonic twitching from the top of the head down to the legs, as well as inward-turning of the right foot which might be part of this. On February 2002 VA outpatient neurological examination, there were no myoclonic movements of the palate, and no fasciculations of the tongue. Motor examination showed normal tone bilaterally, and power was symmetric at 5/5. There was no muscle atrophy. There were both a postural and kinetic tremor bilaterally in the upper extremities, and occasional fine movements of the fingers which possibly represented small fasciculations, though no large muscle fasciculations or myoclonic movements were seen. There was occasional movement of the left upper extremity, though no grossly dystonic movements were seen. There were no abnormal movements in the lower extremities noted on examination, and no noted acataphasia or choreiform movements. Sensation was intact, and vibratory and position sense was normal. Finger- to-nose and heel-to-shin testing was intact, without dysmetria. Rapid alternating movements were intact bilaterally, although the veteran was slightly clumsier on the left. Gait testing showed intact tandem walking and a negative Romberg sign. Reflexes were symmetric: trace in the upper extremities despite distraction, and 2 in the lower extremities including the ankles. The toes were down going bilaterally. The impression was that the veteran's symptoms were most consistent with an essential tremor, with noted improvement after alcohol consumption. March 2002 VA electromyographic and nerve conduction studies were normal, with no electrodiagnostic evidence for a neuropathic process. Muscle tone was normal, and there was no focal weakness of the upper extremities. Sensory examination of the upper extremities was intact bilaterally. No fasciculations or other movement abnormalities were seen. On May 2002 VA outpatient examination, the veteran appeared somewhat twitchy, although it was unclear to the examiner whether there might be a strong volitional component to this. Reflexes were 2-3+ in the upper extremities. Tone appeared normal. Gait was remarkable for turning in the left foot as he walked, and the examiner was again unsure whether this was volitional. The assessment was possible movement disorder perhaps best described as essential myoclonus and tremor; chorea was another possibility, as well as a strong psychiatric component to the presentation. When seen again in August, reflexes were 1+ in the upper extremities and 2-3+ in the lower extremities, with an equivocal toe on the left due to withdrawal, and a down going toe on the right. On motor testing, the veteran tended to turn-in his feet, and had a give-away quality of weakness, especially in the left extremities. He also demonstrated irregular jerking in the left upper extremity. Gait was relatively unremarkable, although he did toe-in. The assessment was possible movement disorder versus functional cause for excessive movements; it was difficult to fit the veteran's complaints into any 1 particular syndrome, and objective signs were suggestive only of minor pyramidal tract involvement at best. The possibility of focal or generalized dystonia could be raised, although there appeared to be a strong functional component to the veteran's examination. On early April 2003 VA outpatient orthopedic examination, the veteran had pain with full range of motion of the hips, knees, and ankles. There was no tenderness, and the hips, knees, and patellae were stable. On late April 2003 VA outpatient examination, the veteran ambulated without difficulty. In a May 2003 addendum to the examination report, a physician opined that the veteran was able to operate a motor vehicle/car without restriction. During the May 2003 Board hearing, the veteran and his wife testified about his tremors and how they impaired him functionally. He stated that it caused him constant shaking, jerking, and pain somewhere in his body, caused him to fall approximately once per day; and generally prevented him from driving a car. His wife testified that she shaved the veteran and cooked for him, buttoned and zipped his clothing, and tied his shoes. On early June 2004 VA outpatient examination, the veteran's myotonic dystonia was noted to significantly interfere with his activity level, causing him to fall. Current examination showed left arm and hand spasticity from nerve injury. Pedal pulses were normal. There were fasciculations in the arm, shoulder, and abdomen from myoclonic dystonia. On mid-June 2004 VA outpatient neurological examination, muscle tone was within normal limits. There was a tremor in both hands. Strength was 5/5 throughout. There was sensory impairment to vibration and pain in the left lower extremities; otherwise, sensory testing was unremarkable. Coordination was slightly impaired on finger-to-nose testing bilaterally; heel, knee, and shin testing was intact. Reflexes were 2+ throughout, and the plantar response was found bilaterally. The assessment was that it was difficult to feature the veteran's complaints into any one particular syndrome, and objective signs were suggestive only of minor pyramidal tract involvement at rest, as the myoclonus was likely psychogenic. Compared to examination 2 years ago, the physician opined that the veteran's symptoms had not worsened, and that he did not need medications for his myoclonus-dystonia. On the February 2005 VA examination, the veteran complained of a tremor affecting his torso, abdominal muscles, and legs which was aggravated by anxiety and stress. He also complained of spilling food on his clothing, and that his wife had to cut his food for him, assist him with activities of daily living, such as shaving and brushing teeth. He drank 3 pots of coffee per day, but denied that caffeine had any effect on his tremors. On current motor examination, the veteran exhibited arrhythmic large motor excursions of the entire left upper extremity and shoulder, with some radiation into the torso and lower extremities, and the most likely diagnosis was myoclonic dystonia. Due to the severity of the myoclonic dystonia and involuntary movements, the examiners opined that any employer was likely to consider the veteran a potential liability, as a result of which he was not considered to be employable. A March 2005 VA examination found no sleep apnea. Based on the above, the Board finds that a schedular rating in excess of 30 percent has not been warranted at any time since May 10, 2001. The objective findings show that, since that date, the significant impairment that the veteran has experienced stems from the organic and functional symptoms of his myoclonic dystonia, a disability for which he is also service connected and for which he receives a separate disability rating. In this regard, the Board notes the June 2004 VA examination findings showing a tremor in both hands, but objective signs suggestive only of minor pyramidal tract involvement at rest, as the myoclonus was likely psychogenic. Significantly, the physician opined that the veteran's symptoms had not worsened compared with examination 2 years previously. Although on February 2005 VA examination the veteran complained of a tremor affecting his torso, abdominal muscles, and legs, and on examination he exhibited arrhythmic large motor excursions of the entire left upper extremity and shoulder, with some radiation into the torso and lower extremities, these were diagnosed to be manifestations of the service-connected myoclonic dystonia. The Board notes the argument of the veteran's attorney, advanced in her April 2008 letter, that a higher rating was warranted because the evidence, including the lay testimony of the veteran and his spouse as to his inability to care for himself and inability to walk without braces or a wheelchair, shows significant "motor impairment, complete or partial use of an extremity, or disturbance of gait." She also argued that, "because the record contains evidence establishing that the veteran suffers from complete motor impairment, he is entitled to a 100 percent disability rating." The evidence does not support the arguments of the veteran's attorney in this regard. Since May 10, 2001, the veteran's motor impairment has been neither complete nor in such proportion as to warrant a rating in excess of 30 percent. On the November 2001 VA examination, the veteran rose from his wheelchair and ambulated without assistive devices, and there was only "some trouble" tandem walking. February 2002 gait testing showed intact tandem walking. On May 2002 VA outpatient examination, gait was relatively unremarkable, although the veteran did toe-in. Subsequent VAOPT notes and VA examination reports did not indicate that the veteran's essential tremor caused either complete or substantial motor impairment. In these circumstances, the Board finds that the 30 percent rating adequately reflects the proportion of the impairment of motor function since May 10, 2001. The Board also notes that the objective findings pertaining to the essential tremor do not show partial loss of use of one or more extremities from neurological lesions such as to permit rating by comparison with the mild, moderate, severe, or complete paralysis of peripheral nerves, as provided by 38 C.F.R. § 4.124a. There are no other diagnostic criteria which would provide a basis for assignment of a higher rating in this case. In this regard, in June 2006, the veteran's representative argued that the essential tremor should be rated analogous to seizures under DC 8911. However, the Board finds that this is not an appropriate analogy, as seizures are not a closely- related disease in which the functions affected and the anatomical localization and symptomatology are closely analogous. Rather, it is no more than a conjectural analogy, which 38 C.F.R. § 4.20 specifically provides must be avoided. The above determinations are based upon application of the pertinent provisions of VA's Rating Schedule. Additionally, the Board finds that the record does not reflect that, at any point since May 10, 2001 date of claim for increase, the veteran's tremor has reflected a disability picture that is so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (as discussed in the June 2002 SOC and cited in the August 2005 SSOC). In this regard, the Board notes that, while the veteran is unemployed, competent medical evidence does not demonstrate that his essential tremor, alone, results in marked interference with employment (beyond that contemplated by the 30 percent schedular rating assigned). In this regard, the Board points out the February 2005 VA medical opinions that the veteran was considered to be unemployable due to the combined severity of the myoclonic dystonia and involuntary movements, and the fact that a TDIU has been assigned based on consideration of the aforementioned disabilities, as well as two other service- connected disabilities affecting the knees. There also is no objective evidence that the disability warrants frequent periods of hospitalization, or that the disability otherwise renders impractical the application of the regular schedular standards. In the absence of evidence of any of the factors outlined above, the criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For the foregoing reasons, the claim for a rating in excess of 30 percent for an essential tremor must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against assignment of any higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. § 3.102 (2007); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A rating in excess of 30 percent for an essential tremor is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs