Citation Nr: 1306993 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 06-10 714 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to service connection for a tremor disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from July 1982 to October 1986. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2005 decision by the RO which declined to reopen the claim of service connection for post traumatic stress disorder (PTSD) with tremors, to include depression, anxiety, panic disorder, suicidal thoughts, sleep difficulty lack of attention, agoraphobia, and alcohol addiction. The claims for PTSD and alcohol abuse were withdrawn by the Veteran in January 2006 and May 2006, respectively. See 38 C.F.R. § 20.204. In May 2009, the Board denied service connection for depression, anxiety, panic disorder, suicidal thoughts, sleep difficulty lack of attention, agoraphobia, and reopened and remanded the claim for a tremor disorder. In December 2009, the Board denied service connection for a tremor disorder, and the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a July 2010 joint motion for remand (JMR), the Court vacated the Board's decision and remanded the issue for compliance with the terms of the joint motion. The Board remanded the appeal for additional development in July 2011, and August 2012. FINDING OF FACT The evidence of record establishes that the Veteran's benign essential tremors clearly and unmistakably preexisted service and clearly and unmistakably did not increase in severity during service or otherwise worsen beyond the natural progression of the underlying disease process in service. CONCLUSION OF LAW A tremor disorder was not incurred in or aggravated by active service nor may any current tremor disorder be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1131, 1153, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. This must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326. The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in November 2004, and May and July 2005. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Kent v. Nicholson, 20 Vet. App. 1 (2006). As to VA's duty to assist, the Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records (STRs), and all VA and available private medical records have been obtained and associated with the claims file. The Veteran was afforded several opportunities for a personal hearing, but either failed to report or withdrew his request. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The Veteran was examined by VA during the pendency of this appeal. Given the nature of the disability and the underlying legal issues, the claims file was also reviewed by another VA physician to address the specific medical questions presented in this case. For the reasons discussed herein below, the Board finds that the examinations were thorough and that the examiners opinions were sufficiently detailed and adequate upon which to base a decision on the merits of the Veteran's claim. Further, neither the Veteran nor his representative have made the RO or the Board aware of any additional available evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009). Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available but not yet part of the claims file. Accordingly, the Board finds that the duty to notify and duty to assist have been satisfied. Also, the Board finds that the AMC complied with the May 2012 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) and Dyment v. West, 13 Vet. App. 141, 146- 47 (1999). Service Connection: In General Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Where a Veteran served for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a chronic disease, such as organic disease of the nervous system becomes manifest to a degree of 10 percent within one year of date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). An alternative method of establishing the second and third Shedden/Caluza elements for a chronic disability listed under 38 C.F.R. § 3.309(a), is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011); see also, Barr v. Nicholson, 21 Vet. App. 303 (2007); Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition listed under 38 C.F.R. § 3.309(a) was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). 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 and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); VAOPGCPREC 3-03 (July 16, 2003). Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b) (2012). In determining whether there is clear and unmistakable evidence to rebut the presumption of soundness, all evidence of record must be considered, including post service medical opinions. Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000); Adams v. West, 13 Vet. App. 453 (2000). In July 2003, the VA General Counsel issued a precedent opinion which 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. VAOPGCPREC 3-03. 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. Id.; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Tremor Disorder Initially, it should be noted that the Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Veteran does not contend, nor does the evidence of record show that his tremors were first manifested in service. Rather, the Veteran asserts that his tremors were aggravated during service, as evidenced by the fact that he was started on medication during service. Regarding the Veteran's contentions, while he is competent to describe the symptoms he has experienced, the etiology of his tremors may not be diagnosed via lay observation alone, and he is not shown to have the expertise to provide a complex medical opinion concerning the nature or etiology of his current tremor disorder. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). At the time of service enlistment, there is a presumption that the Veteran entered service in sound health. In this case, the Veteran did not report any history of tremors at the time of his service enlistment examination in March 1982, and no pertinent abnormalities were noted on examination. Therefore, with respect to a tremor disorder, the Veteran is entitled to a presumption of soundness. The STRs showed that the Veteran entered service on July 2, 1982, and was seen on sick call on July 19th, for uncontrolled muscle twitching at the night and excessive hand shaking. The Veteran reported nervousness and shaking since the day he entered service, and appeared to be apprehensive and nervous. The impression was adjustment reaction. The STRs showed that the Veteran was evaluated for generalized tremors in June 1984, at which time he reported a history of progressive tremors for three to four years. The assessment was probable essential tremor, and he was started on medication. The assessment on a subsequent report in July 1984, was benign essential tremors, markedly improved with medication. The Veteran's separation examination in October 1986, noted that the Veteran had a nervous tremor which was medically evaluated and not considered disabling. On examination, the Veteran's neurological system was normal. The evidence of record includes numerous private and VA medical records, including some duplicate records from the Social Security Administration (SSA) showing treatment for various maladies from May 2000 to the present. A private medical report, dated in February 2001, showed that the Veteran's mother was interviewed in connection with his claim for SSA disability, and reported that he had always had the shaking problem and that she first noted it when he was three years old. She said that he had been treated by many doctors over the years, including during service, but that the underlying cause was never identified. A VA discharge summary report, dated in April 2001, showed that the Veteran was hospitalized for psychiatric problems and alcohol abuse in March 2001. At that time, the Veteran reported that his tremors began in childhood. The Veteran complained of memory problems and was noted to be a poor historian. Neurological findings showed deep tendon reflexes were equal throughout and Romberg was negative. The Veteran lost his balance with heel/toe gait, and there was 4/5 weakness in the upper and lower extremities. The diagnosis on a VA treatment note in April 2004 was tremor NEC. A VA psychiatric report in March 2005, included an Axis III diagnosis of benign familial tremor. When examined by VA in May 2006, the Veteran reported that his tremors began when he was 15 years old. He said that a niece and grandmother both have tremors, and that his tremors worsened over the years and had spread to all four extremities. The diagnosis was benign essential tremors. When examined by VA in June 2009, the examiner indicated that the claims file was reviewed and included a detailed description of the Veteran's complaints and medical history. At that time, the Veteran reported that his tremors started in the 1970's, and that they gradually worsened over the years. He said that they increased during periods of stress and primarily involved his hands making it difficult to eat, use a screwdriver and write. He said that alcohol seemed to help. The Veteran also indicated that his maternal grandmother and maternal aunt may have had a similar tremor disorder. The Veteran reported that he previously worked for 13 years as a cook, and last worked in accounts payable in a hospital until about 10 years ago, and was currently receiving SSA disability due to a low back disability and a psychiatric disorder. The diagnosis was benign essential tremors. The examiner commented that the Veteran's tremors were not congenital as they were not present at birth and maybe genetic or developmental, but was more likely an acquired disorder since they came on when he was a teenager. The examiner opined that it was at least as likely as not that the Veteran's tremors pre-existed service, and that any increase during service was at least as likely as not due to the natural progression of the disease process. The examiner indicated that his opinion was based on the Veteran's self-reported history in service and on examination, the current severity of his condition and a review of handwriting samples in the claims file. The Board remanded the appeal on two subsequent occasions (July 2011 and August 2012), to obtain a medical opinion which addressed the specific legal criteria concerning pre-existing disabilities under VA regulations. In February 2012, after reviewing the claims file, a VA physician opined that the Veteran's tremor disorder clearly and unmistakably existed prior to service and that it was not clearly and unmistakably aggravated by service. The examiner indicated that his opinion was based on the Veteran's self-reported history that his tremors were present prior to service. In an addendum report, dated in June 2012, the VA physician indicated that it was well documented in the STRs that the Veteran's tremors existed prior to service, and that there was no information in the medical records to indicated that it was aggravated beyond its natural progression by service. The physician indicated that his opinion was based on the Veteran's self-reported history and a review of handwriting samples in the claims file. In an addendum report, dated in September 2012, the same VA physician stated that the Veteran's tremor disorder clearly and unmistakably existed prior to service, that there was no increase in the severity of his tremor disorder during service, and that his current symptomatology was clearly and unmistakably due to the natural progress of the disorder. In this case, while the Veteran did not report his history of tremors at the time of his entrance examination, the Board finds that his subsequent statements in service and on the VA examinations during the pendency of this appeal, as well as his mother statement in February 2001, that he had always had tremors since he was three years old, clearly and unmistakably showed that his tremors existed prior to his enlistment for active service in July 1982. Thus, the question to be resolved in this appeal, is whether the Veteran's pre-existing tremor disorder was clearly and unmistakably not aggravated during service so as to rebut the presumption of soundness. VAOPGCPREC 3-03; Wagner, 370 F.3d at 1096. In this regard, while the Veteran was seen for nervousness and tremors shortly after entering service, and was further evaluated and started on medication for tremors in 1984, there is nothing the STRs to suggest or otherwise demonstrate that his pre-existing tremors increased in severity beyond the natural progression of the disease process during service. The fact that the Veteran was started on medication during service, does not, in itself, constitute a worsening of the underlying disease. Moreover, the claims file was reviewed by two VA physicians during the pendency of this appeal, to determine whether his tremors were aggravated by service. The examiners included a description of the Veteran's medical history and the objective findings of record, and concluded that his tremors were not aggravated beyond the natural progression of the disease process during service. In fact, the VA physician in September 2012 stated, unequivocally, that there was no increase in the severity of his tremors during service. In this case, the Board finds the VA opinions, and in particular, the September 2012 opinion, persuasive as they were based on a longitudinal review of the claims file and included a discussion of all relevant facts. The examiners offered a rational and plausible explanation for concluding that the Veteran's pre-existing tremors were not aggravated beyond the natural progression of the disease process in service, and was not otherwise related to service. See Wray v. Brown, 7 Vet. App. 488, 493 (1995); see also Preteen v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.). Significantly, the September 2012 examiner was unequivocal in his opinion that the Veteran's tremors did not increase in severity during service, which is the sort of opinion necessary to rebut the presumption of soundness; i.e. undebatability. This evidence rises to the level of clear and unmistakable evidence; thus, the high burden for rebutting the second prong of the presumption of soundness is met by this undebatable evidence. Furthermore, there is no competent lay or medical evidence to suggest that the Veteran's pre-existing tremors increased in severity beyond the natural progress during service. While the Veteran is competent to provide evidence of visible symptoms, he is not competent to offer a medical opinion concerning the nature or etiology of his current tremor disorder. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). As there is no competent medical evidence of record suggesting a connection between the Veteran's current tremors and service, and none that manifest a worsening of his pre-existing tremors in service, the record affords no basis to grant service connection. Accordingly, the Board finds that the claim of service connection for a tremor disorder must be denied. The benefit of the doubt has been considered, but there is not an approximate balance of positive and negative evidence regarding the merits of the issue on appeal. Therefore, that doctrine is not for application in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for a tremor disorder is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs