Citation Nr: 1315490 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 12-03 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for benign essential tremor, bilateral upper extremities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Zobrist, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1957 to July 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received that same month, a statement of the case was issued in December 2011, and a substantive appeal was received in February 2012. In this case, the Board has reviewed both the Veteran's physical claims file and the Veteran's electronic file through the "Virtual VA" system to ensure a complete review of the evidence. FINDING OF FACT The Veteran's benign essential tremor, bilateral upper extremities, did not manifest during active duty service, or for many years after discharge from service, nor is such disability otherwise causally related to service. CONCLUSION OF LAW Benign essential tremor, bilateral upper extremities, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Duty to Notify Upon receipt of a complete application, VA 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 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant with proper notice by letter dated in July 2010. This notice complied with the specificity requirements of Dingess, identifying the five elements of a service connection claim, and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. The record as it stands includes sufficient competent evidence. All available pertinent records have been obtained, and the Veteran has not contended otherwise. VA has obtained service treatment records (STRs) and postservice VA treatment records. With regard to service connection issues being decided herein, the Board finds that a VA medical examination (with nexus opinion) is not required in order to make a final adjudication with regard to the service connection claim on appeal. McLendon v. Nicholson, 20 Vet. App. 79 (2006), states that, in disability compensation (service connection) claims, VA must provide a medical examination [for a nexus opinion, as applicable] when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. The Board finds that the standards set forth in McLendon are not met with regard to the issue on appeal in this case. There is no credible evidence of an event, injury, or disease during service, or within a presumptive period, to satisfy the second McLendon requirement. As discussed below, the evidence in this case establishes that there is no competent, credible evidence of record that the Veteran had tremors in service and that there is no competent evidence indicating that his current disability may be related to service. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file, and the Veteran and his representative have not contended otherwise. VA has complied with the notice and assistance requirements, and the Veteran is not prejudiced by a decision on the claim at this time. Analysis This appeal involves a claim of entitlement to service connection for benign essential tremor, bilateral upper extremities. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). Certain chronic disabilities, such as organic diseases of the nervous system and psychoses, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1133; 38 C.F.R. §§ 3.307, 3.309. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465,469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, supra. A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr, 21 Vet. App. at 310 ("[T]he Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms."). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Also, a veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition; he is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Board further notes that it has reviewed all of the evidence in the Veteran's claims file and in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to the matter on appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Board finds that, in this case, service connection is not warranted with regard to benign essential tremor, bilateral upper extremities, because the preponderance of the evidence is against finding that any such disability manifested during service, manifested within a year following service, or is otherwise etiologically linked to service. The Veteran was diagnosed with benign essential tremor, bilateral upper extremities, in August 2010. The Veteran is competent to state that his symptoms began while in service. However, as discussed below, the Board finds that the Veteran's assertions regarding onset during service with tremors thereafter are not credible. The Veteran's STRs are silent as to any suggestion of treatment or diagnosis of any injury or disability of either upper extremity or a neurologic disability. The Veteran's June 1961 service separation medical examination report shows that a trained medical professional determined that the Veteran was clinically normal with no pertinent abnormalities, including specifically with regard to upper extremities and the neurologic system. The medical history questionnaire completed at the same time shows that the Veteran, himself, did not indicate any history of upper extremity disability and expressly denied "all other illnesses, operations, or injuries" other than chickenpox and measles in childhood, a tonsillectomy at age six, and boils. It was also noted that he had mild nervousness, but the report is negative for tremors. The Board finds that if the Veteran had tremors in service, it would have been reasonable for him to have reported them and for such to be noted in his STRs; it is not. The Veteran's STRs also include a September 1963 enlistment examination report associated with reserve service; there is no record that the Veteran served in a reserve component, nor does the Veteran claim any reserve service. As with the medical reports associated with the Veteran's separation from active duty service, the September 1963 report shows that a medical professional determined that the Veteran was clinically normal with respect to the upper extremities and neurologic system, and the Veteran did not indicate a history of symptomatology related to his upper extremities or the neurologic system. Mild nervousness was noted, but the report is negative for tremors. Again, the Board finds that if the Veteran had tremors in service, or in the more than two years after separation from service, it would have been reasonable for him to have reported them and for such to be noted in his STRs; it is not. Finally, although the Veteran asserted, in his June 2010 claim for disability benefits, that his upper extremity disability began in 1961, said disability is first documented in an August 2010 VA outpatient treatment record, nearly 50 years after service, in which the Veteran reported a history of tremors for many years but did not associate the tremors with active duty service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). While the Board acknowledges that the absence of any corroborating medical evidence supporting assertions, in and of itself, does not render lay statements incredible, such absence is for consideration in determining credibility. See Buchanan, supra (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of appellant's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible); see also Jandreau, supra. There is no competent indication that the Veteran's current benign essential tremors are due to nervousness, or any other incident, in service. Moreover, the Veteran has not been shown to have had training, experience, or education necessary to make a competent finding as to the etiology of his tremors, and the Board finds that such is outside the competency of a lay person. Barr v. Nicholson, 21Vet. App. at 307 (lay persons generally "are not competent to opine as to medical etiology or render medical opinions"); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 452 (2007) (noting that some disabilities are not "capable of lay diagnosis"); but see Jandreau, supra ("Lay evidence can be competent and sufficient to establish a diagnosis of a condition when [the] layperson is competent to identify the medical condition."). The Board also finds that service connection is not warranted on a presumptive basis, as the probative evidence (the Veteran's September 1963 reserve enlistment examination) weighs against finding that any upper extremity disability manifested to a compensable degree within one year of discharge from service. In sum, the Veteran denied an upper extremity disability in June 1961 and September 1963, no disability was found upon examination in June 1961 or September 1963, the first clinical evidence of a disability is in August 2010, and there is no competent clinical evidence that the Veteran's disability is related to service. Moreover, as noted above, the Board finds that the Veteran's assertion that symptoms of his disability began in service is not credible. Indeed, the Board finds that the evidence presents competent and credible probative evidence that the Veteran did not have any pertinent disability or injury involving either upper extremity during his active duty military service. The Board further finds that the competent, credible evidence in this case weighs against a finding of any medical nexus between any current upper extremity disability and the Veteran's service. As the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for benign essential tremor, bilateral upper extremities, the benefit-of-the-doubt rule does not apply and this claim is denied. See 38 U.S.C.A § 5107. ORDER The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs