Citation Nr: 1318301 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 05-29 692 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a right hand tremor, also claimed as secondary to a service-connected cervical spine disability. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran served on active duty from October 1963 to October 1967 and again in the Naval Reserves from February 1987 to February 2004 with various periods of active duty for training (ACDUTRA), to include January 31, 1997, and inactive duty for training (INACDUTRA). This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The case was brought before the Board in October 2009 and again in July 2011, at which time the claims were remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claims, to include affording him VA examinations and supplemental opinions. The requested development was subsequently completed and the case returned to the Board. In March 2013, the Board determined that the service connection claim for right hand tremor still needed further development in the form of a VHA opinion. The requested opinion was provided in April 2013. The Veteran has not been provided with a copy of the VHA opinion; however, the Board has found that there is sufficient evidence to grant the Veteran's service connection claim for right hand tremor. For this reason there is no prejudice to the Veteran due to his not reviewing the medical opinion prior to a decision by the Board. It is acknowledged that during the pendency of the appeal, the Veteran was awarded a 100 percent schedular evaluation for an unrelated disability. The Court has held that the receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for a TDIU. Bradley v. Peake, 22 Vet. App. 280 (2008). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation. The Veteran initially filed his claim seeking TDIU in 2003. In the following decision, the Board has determined that the evidence supports the assignment of a TDIU as of March 1, 2012. The matter of entitlement to TDIU prior to March 1, 2012 must be remanded, however, as further development is required. The issue of entitlement to special monthly compensation based on loss of use of the right hand has been raised by the record via the Veteran's original claim in November 2003, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this matter, and it is referred to the AOJ for appropriate action. The issue of entitlement to a TDIU prior to March 1, 2012 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The evidence of record is at least in equipoise as to whether the Veteran's currently diagnosed right hand tremor was incurred in service. 2. From March 1, 2012, the Veteran met the schedular criteria for a TDIU and his service-connected disabilities precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for right hand tremor have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 2. From March 1, 2012, the criteria for entitlement to a TDIU are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341(a), 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's 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 & 3.326(a) (2012). The Board herein grants service connection for right hand tremor and entitlement to a TDIU effective from March 1, 2012. Other than the issue addressed in the remand section below, this represents a complete grant of the benefits sought on appeal. For this reason, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. II. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection can be demonstrated for a disease diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (holding that proof of direct service connection may entail proof that exposure during service caused the malady that appeared many years later); Cosman v. Principi, 3 Vet. App. 503, 505 (1992) (holding that service connection can still be established even when a Veteran did not have a particular condition diagnosed during service or for many years thereafter). In order to establish service connection, the evidence must generally show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); see generally 38 C.F.R. § 3.303. Alternatively, under 38 C.F.R. § 3.303(b), the second and third Shedden/Caluza elements can be established through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). The U.S. Court of Appeals for the Federal Circuit has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), affirming Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). [emphasis added]. For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing inservice incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). In this case essential tremor, which is an organic diseases of the nervous system is considered a chronic disability under 38 C.F.R. § 3.309(a). Therefore, service connection for essential tremor can be established by demonstrating continuity of symptomatology since service under 38 C.F.R. § 3.303(b), in addition to showing inservice incurrence or aggravation under 38 C.F.R. § 3.303(a) or that the post-service diagnosis is related to service under 3.303(d). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition 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. Barr, 21 Vet. App. at 307. Symptoms, and not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. The third Barr/Savage element is not equivalent to the third Shedden/Caluza element, as requiring medical nexus evidence under 38 C.F.R. § 3.303(b) would nullify that regulation. Id. at 497. However, it does not follow that any present disability is necessarily related to any demonstrated continuous symptomatology. Id. Therefore, in Savage, the Court held that competent evidence is required to demonstrate a relationship between the continuous symptoms and the presently diagnosed disability. Id. (explaining that "medical evidence is required to demonstrate such a relationship unless such a relationship is one to which a layperson's observation is competent"). Service connection may also be granted for a disability proximately due to or the result of a service-connected disability and where aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Further, effective October 10, 2006, 38 C.F.R. § 3.310 was amended to codify the Court's holding in Allen, which relates to secondary service connection on the basis of aggravation of a nonservice-connected disorder by a service-connected disability. See 38 C.F.R. § 3.310(b). The amendment essentially requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. In addition, the law provides that, where a veteran served ninety days or more of active military service, and certain chronic diseases, including organic diseases of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Presumptive regulations, however, do not apply to periods of active duty for training (or inactive duty for training for that matter). See Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in line of duty. 38 U.S.C.A. § 101(21)(24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) duty in which the individual concerned was disabled from injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1131. ACDUTRA includes full time duty performed by members of the National Guard of any state or the reservists. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full time duty performed by a member of the Reserves or the National Guard of any state. 38 C.F.R. § 3.6(d). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Turning now to the facts of this case, the Veteran alleges his right hand tremor is a result of a motor vehicle accident (MVA) occurring on January 31, 1997 while he was on ACDUTRA. The Veteran suffered whiplash to his neck and radiating pain down his right arm and right hand. The Veteran claims he now has a chronic right hand tremor due to the whiplash and secondary to the primary neck injury he sustained in the 1997 MVA. He further claims he is unemployable mainly because of the loss of use of his right hand. The Veteran claims he is unable to perform any fine motor tasks with his right hand, which is his predominant hand. The Veteran's service treatment records confirm the 1997 MVA with complaints of neck pain and radiating right arm and hand pain. The service treatment records also indicate the Veteran injured his right thumb breaking up a fight in October 1965 and fractured right fingers in April 1990 while pulling out a ground rod with a forklift. The Veteran was afforded VA examinations in December 2005 and May 2008 to ascertain whether the Veteran's right hand tremor could be secondary to his service-connected neck disability. The December 2005 VA examiner determined that he was not able to determine the likelihood that the claimed right hand disability was due to his neck injury without resorting to mere speculation, but did not provide a rationale for this opinion. Thus, the Board cannot rely on this opinion. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) ("An examiner's conclusion that a diagnosis or etiology opinion is not possible without resort to speculation is a medical conclusion just as much as a firm diagnosis or a conclusive opinion . . . however, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence."). Also, the examiner did not address whether the Veteran's right hand disability was aggravated by the cervical spine disability or address the likelihood that the Veteran's right hand disability was directly related to service. In May 2008, the VA examiner determined that the Veteran's essential tremor was less likely than not caused by or related to his cervical condition, noting that the literature on essential tremor showed that the neuropathologic basis was unknown but that the discussion of cause seemed to be more related to genetics and brain pathology. While a rationale was provided for why the Veteran's essential tremor was not related to the cervical spine disability, again, this examiner did not comment on every possible theory of recovery in this case. Specifically, the examiner did not comment on whether the Veteran's right hand tremor was aggravated by his service-connected neck disability. The Veteran also had not been afforded a VA examination to ascertain whether the Veteran's right hand tremor could directly be related to in-service injuries, to include the 1965 and 1990 right hand injuries or the 1997 MVA. Thus, the Veteran was afforded another VA examination in December 2010 and the examiner also issued a March 2011 addendum fully stating her opinion. Essentially, the examiner diagnosed the Veteran with essential tremor and right hand numbness secondary to carpal tunnel syndrome. The examiner opined that the Veteran's numbness and carpal tunnel syndrome was due to hereditary peripheral neuropathy and not due to or aggravated by the Veteran's service connected neck disability or military service. The examiner further opined that the etiology of the Veteran's essential tremor was unknown, but medical research tends to suggest the diagnosis is related to hereditary factors, such as gene defects. Again, the examiner opined the Veteran's essential tremor was not due to or aggravated by his military service or cervical spine disability. In rendering her opinion, the December 2010 VA examiner noted the 1997 MVA as pertinent medical history, but did not note or otherwise discuss the Veteran's other in-service injuries. Thus, it is entirely unclear whether the examiner considered whether the Veteran's conditions could be related to the 1965 or 1990 in-service right hand injuries. For these reasons, the Board sent the case back for another opinion. Additionally, a private EMG report dated in December 2010, similar to the December 2010 VA examination, concludes the Veteran has sensory motor peripheral neuropathy that is "most likely hereditary" and predisposed him to carpal tunnel syndrome. In short, the December 2010 VA examination and the private EMG report opine that the Veteran's current right hand disorder may, at least in part, be due to hereditary factors. In general, congenital or "hereditary" defects are not considered a disease or injury for the purpose of service connection. 38 C.F.R. § 3.303(c), 4.9; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). However, the VA Office of General Counsel held that service connection may be granted for a congenital disease on the basis of in-service aggravation. See VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990) [a reissue of General Counsel Opinion 01-85 (March 5, 1985)]. In that opinion, it was noted that a disease considered by medical authorities to be of congenital, familial (or hereditary) origin by its very nature preexists claimants' military service, but that service connection for such diseases could be granted if manifestations of the disease in service constituted aggravation of the condition. See also Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). To the extent the congenital defect is not a disease, service connection may still be granted for resultant disability caused by any superimposed disease or injury. Accordingly, the crucial inquiries here are whether any resultant disability was caused by a superimposed disease or injury during service or, in the alternative, whether the right hand tremor or peripheral neuropathy was aggravated beyond the natural progression of the condition during service. These are medical inquiries that were not addressed in the prior VA examinations and, therefore, the Veteran was entitled to a new VA examination. See also 38 U.S.C. § 5103A(d) (2002); 38 C.F.R. § 3.310(a)(2)(b) (stating that service connection on a secondary basis may be established by a showing that the current disability was either caused by or aggravated by a service-connected disability); Schroeder v. West, 212 F.3d 1265 (Fed. Cir. 2000) (requiring the VA to investigate all possible in-service causes of a veteran's current disability, including those unknown to the veteran). An addendum opinion was provided by the previous 2010 examiner in August 2011. She stated that the cause of the Veteran's essential tremor was unknown but that the essential tremor was not caused by or aggravated by the Veteran's military service. She also determined that the Veteran's essential tremor was not caused by or a result or aggravated by the Veteran's service-connected neck condition. She did not offer a rationale for this opinion but noted a WebMD.com article that explained the symptoms of benign essential tremor. She then stated that based on EMG findings the Veteran's right hand condition was not caused by or a result or aggravated by the Veteran's service-connected neck condition. The EMG noted findings of primarily demyelinating sensory motor peripheral neuropathy, which suggested this was most likely hereditary and might predispose him to carpal tunnel syndrome. She went on to explain that a hereditary neuropathy was one that was passed by genetic condition and not acquired while in the military, nor a result of radiculopathy of a neck condition. In August 2012, the RO provided for a medical opinion from a medical officer who is a physician. The physician noted that the opinion provided was based on a review of the claims file and previous examinations in May 2008, December 2010 with addendum opinion in August 2011. The physician stated that the Veteran's claimed right hand condition, which included tremors and chronic numbness and tingling was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury or event of the motor vehicle accident with whip lash injury to the cervical spine, including the minor injuries to his right thumb and fingers that are documented in the active duty health record. The physician also stated that the claimed right hand condition, which included tremor and chronic numbness and tingling was less likely than not (less than 50 percent probability) proximately due to or the result of and not aggravated beyond its natural progression by the Veteran's service-connected cervical spine disability. The rationale was that the Veteran's injuries to the right thumb and fingers documented in the service records were minor contusions and simple finger fracture without medical evidence of sequelae. The physician noted that the Veteran was in a motor vehicle accident and suffered a whiplash injury but that the emergency room examination was normal, other than a notation of a previous fracture of T-8 vertebra. Physical examinations throughout active duty and Naval Reserve service noted no history of nerve condition and normal neurological examinations. Both EMGs confirmed distal neuropathy of the median nerve consistent with carpal tunnel syndrome and ulnar nerve abnormality, with the more recent EMG dated December 2010 suggesting primarily demyelinating sensory motor peripheral neuropathy that would be most consistent with a hereditary neuropathy. There were no findings of right cervical neuropathy. An August 2007 private neurological consult noted a diagnosis of essential tremor signed by Dr. Donohoe. It was noted that the Veteran suffered a whiplash injury in 1998 and felt that his tremor began shortly after this. The neurologist found that the Veteran had a six year history of right hand tremor that had recently worsened. Dr. Donohoe also submitted a report in October 2007 noting that there was no family history of essential tremor in this case. A VA neurologist provided an addendum opinion in October 2012. The neurologist noted the previous opinion in August 2011 and the opinion provided by the RO medical officer in August 2012, as well as the findings from the private neurologist in August 2007. Additionally, the neurologist noted the findings in the VA examinations in 2008 and 2010 and the assessment that the Veteran's primary demyelinating sensory motor peripheral neuropathy was most consistent with hereditary neuropathy although other causes could be excluded. Superimposed right carpal tunnel syndrome was at least of moderate severity. It was noted that he had an EMG in 2006 that reported mild carpal tunnel syndrome and suspect ulnar neuropathy, and no cervical radiculopathy on the right hand. The neurologist indicated agreement with the examiner's medical opinion that the Veteran's demyelinating sensory motor peripheral neuropathy was most consistent with hereditary neuropathy. The rationale was that after the Veteran had a whiplash injury in 1997 the annual physical examination in 2002 did not mention any tremor. He was seen by a neurologist in 2007 who thought the Veteran had an essential tremor, which is a hereditary tremor. The Veteran stated that his tremor was improved with alcohol and primidone, which reinforced the tremor was most likely an essential tremor. His EMG did not reveal any cervical radiculopathy. Active duty records did not mention any tremor. With the above it was the neurologist's opinion that the Veteran's essential tremor was not related to his neck injury. After review of all of the above examinations, it still became apparent that not all of the medical questions in this case had been answered. It appeared that the Veteran had multiple diagnoses in the right hand and wrist to explain his symptoms. He had a diagnosis of essential tremor and a diagnosis of demyelinating sensory motor peripheral neuropathy, as well as carpal tunnel syndrome; he did not appear to have cervical radiculopathy based on EMG studies and medical findings. The medical opinions of record showed that the Veteran's essential tremor and neuropathy were not caused by the injuries to the finger and thumb in service, or the MVA, on the basis of there being no subsequent treatment for neurological impairment in service. The medical opinions of record also seemed to show that there was no relationship to the Veteran's cervical spine disability as there was no cervical radiculopathy. In addition the medical opinions seemed to show that the Veteran's essential tremor and neuropathy were based on hereditary factors and that he was genetically predisposed to these disabilities; although it was significant that Dr. Donohoe in October 2007 noted that there was NO family history of essential tremor. However, if the Veteran's diagnoses are to be considered congenital or development defects or diseases, none of the medical opinions clearly addressed whether the Veteran's essential tremor and/or neuropathy with carpal tunnel syndrome were subject to a superimposed disease or injury in service, or whether they were aggravated beyond the normal progress of these disabilities by the Veteran's injury to the finger and thumb, as well as the MVA in service. Therefore, in March 2013, the Board requested a VHA medical opinion addressing the following: 1) Whether the Veteran's diagnoses of essential tremor, demyelinating sensory motor peripheral neuropathy, and/or carpal tunnel syndrome were congenital or developmental defects or diseases; 2) If any of the diagnoses are a congenital defect, whether it is at least as likely as not (50% probability or greater) the defect was subject to any superimposed disease or injury (to include the 1997 MVA, the 1965 right thumb injury or the 1990 finger fractures) during service and whether such caused resultant disability; 3) If any of the diagnoses are a congenital disease, whether it is at least as likely as not (50% probability or greater) the disease increased in severity beyond the natural progression of the disease due to his service-connected cervical spine disability, the 1997 MVA, the 1965 right thumb injury, the 1990 finger fractures or any other incident of service; and 4) If any of the diagnoses are NOT congenital or developmental defects or diseases, whether it is at least as likely as not (50% probability or greater) any of the Veteran's right hand disorders were incurred coincident with service, or caused by any incident of service, to include the 1965 right thumb injury, the 1990 finger fractures or the 1997 MVA with resulting neck injury with radiating right arm pain. In April 2013, a VHA medical opinion was provided by a VA neurologist. The neurologist provided a detailed account of the Veteran's pertinent medical history and then addressed each question posed by the Board. The neurologist determined that it was unlikely that the Veteran's carpal tunnel syndrome or essential tremor diagnoses were congenital or developmental defects. The neurologist noted that the diagnosis of hereditary peripheral neuropathy had not been confirmed with a genetic test. It was noted that rarely carpal tunnel syndrome might occur due to inherited abnormalities of the hand, wrist, or forearm bones, but the Veteran had normal service examinations and the December 2010 examination revealed no deformity or restriction of the thumb, finger, and hand joints. Furthermore the 2006 x-ray of the hand was normal. Thus, the neurologist determined that there was no evidence for, but much evidence against the possibility of a congenital or developmental defect that compromised the carpal tunnel, leading to carpal tunnel syndrome. Regarding the tremor, the neurologist first determined that the Veteran did not have an action tremor but rather an essential tremor, which was not a hereditary essential tremor, as the Veteran reported in August 2007 to his private doctor that he did not have anyone in the family with a tremor. The neurologist also noted that the cause of sporadic essential tremor was not known but that because the evidence indicated that the Veteran most likely had sporadic essential tremor and did not have hereditary essential tremor, it was unlikely that his tremor was a congenital or developmental defect or disease. The neurologist also determined that if the Veteran had demyelinating peripheral neuropathy it would have developed in January 2006 (i.e., after military service). The neurologist went on to find that it was less likely than not (probability less than 50 percent) that tremor or right carpal tunnel syndrome occurred as a result of the 1965 right thumb injury, the 1990 finger fracture or the 1997 MVA injury with resulting neck injury with radiating right arm pain, or as a result of other service-related incident. The neurologist noted that the literature search did not reveal descriptions of peripheral limb traumatic injury that lead to action tremor without injury to peripheral nerve or muscle that caused weakness or chronic pain. If such a condition existed it would be very rare and it would be implausible to connect a thumb contusion or finger fracture to subsequent bilateral upper extremity action tremor. Injury to the cervical spine could be a potential cause of action tremor if the injury caused damage to the nerve roots such that weakness occurred; however, the whiplash injury in 1997 (and vertebral fracture of T8 in 1987) did not cause weakness of the right upper extremities. EMG examinations in 2006 and 2010 found no evidence of radiculopathy; the right hand numbness was determined to be due to carpal tunnel syndrome; neurological examinations found no evidence of paresis or reflex changes before 2010, and there were no symptoms in the left upper extremity, although the left upper extremity was also involved by tremor, as found by three separate examiners. With respect to essential tremor, the neurologist noted that it might be possible that stress and pain associated with injury, such as after the 1997 MVA, the 1965 thumb injury, or the 1990 finger fracture, or the general stress associated with service-related conditions of danger, could exacerbate the natural history of a person's sporadic essential tremor by affecting the as-yet-unknown pre-clinical biological processes that eventuate tremor, insofar as it is well known that strong emotions can acutely exacerbate tremor in persons with essential tremor. At the present time, however, there was no evidence in the literature that emotional stress affected the likelihood of subsequently developing sporadic essential tremor or the rate of progression of essential tremor. The neurologist also determined that a literature search did not reveal that carpal tunnel syndrome was a documented cause of essential tremor, and this condition, symptomatic in the right hand, would not be expected to produce tremor in the left hand. The neurologist found, however, that it was at least as likely as not (50 percent probability or greater) that the Veteran experienced onset of tremor before leaving service in February 2004, that is, coincident with service. The reasoning behind this opinion was that the Veteran's private physician in August 2007 noted that the Veteran had a history of tremor for six years; the Veteran stopped working in 2004 citing disability from tremor; and a 2002 annual examination form filled out by the Veteran showed deterioration of handwriting that was consistent with essential tremor. The neurologist noted that with regard to the time of onset of the Veteran's tremor, tremor was not mentioned in the annual service examinations up to 2002. However, the annual service examination forms did not have a question for the presence of tremor. It was the examiner's experience from reading the medical records on hundreds of patients with known essential tremor that the presence of tremor tended to be poorly reported. The absence of a report did not rule out the presence of tremor. Additionally the neurologist commented that the quality of the Veteran's handwriting could be gauged by the forms he filled out; and the handwriting on the 2002 annual examination form was less tidy and more irregular than in the 1997 comparable form. Also, a handwritten form filled out by the Veteran in 2004 appeared untidy and tremulous. The neurologist also found that it was at least as likely as not (50 percent probability or greater) that the right carpal tunnel syndrome began coincident with service, before leaving service in February 2004. The rationale was that in August 1997 the Veteran reported right hand numbness while driving, which the neurologist noted was a situation in which the driver was in effect performing a self-examination for carpal tunnel syndrome. In October 1997 the Veteran reported symptoms identical to those he reported in January 2006, when he was found to have carpal tunnel syndrome, namely tingling and numbness of three fingers of the right hand. The examiner went on to find, however, that the carpal tunnel syndrome was not disabling. And thus, ended his report. In addressing the facts of this case, initially, the Board notes that because essential tremor was not found to be a result of injury in service and is considered a disease and not an "injury," service connection may only be awarded by establishing that the Veteran's essential tremor had its onset during, or was aggravated by, a period of ACDUTRA in relation to the Veteran's service in the reserves, rather than based on any presumptive incurrence within one year after the reserves service. Service connection would not be warranted for the same circumstances during a period of INACDUTRA. Exceptions to the requirement of an injury during INACDUTRA are for an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident, and are not relevant to the present claim. See 38 C.F.R. § 3.6(a). Personnel records show the Veteran had two periods of active duty service from October 1963 to October 1967 in the Navy and from January 1997 to February 1997 in the Navy Reserves. The Veteran's period of service in the Navy Reserves, however, actually spanned from February 1987 to March 2004, and the Veteran presumably had more than just the one period of ACDUTRA in 1997. The service treatment records document annual examinations and annual certificates of physical condition dated from January 1988 to October 2002, including a December 1997 annual examination. The October 2002 Report of Medical History is the document referenced by the VHA neurologist above who determined that the Veteran's handwriting had slightly deteriorated on this form, which was one of the reasons why the neurologist determined that the Veteran's essential tremor had its onset in service. The October 2002 Report of Medical Examination notes that the purpose of the examination was for retention in the Navy Reserve. The Board will presume for purposes of this decision that the Veteran's October 2002 Report of Medical History and Report of Medical Examination are associated with one of his periods of ACDUTRA, as the examining clinician determined after the examination that the Veteran was qualified for service. As the Veteran's essential tremor was found by the VHA neurologist to have first manifested during one of the Veteran's periods of ACDUTRA in October 2002, service connection for the essential tremor is warranted. While there are multiple other medical opinions of record, noted above, the VHA opinion is the only opinion that addresses all possible theories of entitlement to service connection for essential tremor, and provides a clear opinion with a well-reasoned rationale based on all the pertinent evidence of record. Therefore, the probative valued of the VHA opinion outweighs the other medical opinions addressing the etiology of the Veteran's essential tremor. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). With respect to the issue of carpal tunnel syndrome, however, service connection is not warranted, as the VHA neurologist determined that the first manifestation of this disorder was in August 1997 and again in October 1997, which does not correspond with the Veteran's annual examination in December 1997, which was presumably when his annual training for ACDUTRA started. As noted, the Veteran had a long period of service in the Naval Reserves from February 1987 to March 2004. He presumably had intermittent periods of active duty for training service during this period but it is not clear what dates he was actually considered on active duty. The VHA neurologist determined that the Veteran's carpal tunnel syndrome had its onset in service because the Veteran had complaints on private treatment records in August 1997 and October 1997 that were consistent with his later diagnosis of carpal tunnel syndrome after service in 2006. While it appears that the Veteran's carpal tunnel syndrome started during the Veteran's Naval Reserves service, it does not appear that the carpal tunnel syndrome first started during a period of active duty training. As previously discussed, only injuries can be considered related to inactive periods of service for purposes of service connection. As carpal tunnel syndrome is considered an organic disease of the nervous system (and the VHA neurologist has determined that it was not related to injury in service), then service connection cannot be assigned for carpal tunnel syndrome first manifesting during an inactive period of service. For this reason, the Veteran would not be entitled to service connection for carpal tunnel syndrome, notwithstanding the VHA opinion. Nonetheless, regarding the service connection claim for right hand tremor, as noted above, when, after consideration of all evidence and material of record in a case, there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (holding that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."). Because there is a medical opinion relating the Veteran's essential tremor onset to his Naval Reserves service, presumably due to a period of active duty training, and credible supporting evidence of a chronic tremor disorder since service, the Board concludes that the evidence supports the grant of service connection for right hand tremor. Thus, following a full review of the record, and applying the benefit of the doubt doctrine, all doubt is resolved in favor of the Veteran. See 38 C.F.R. § 3.102. Therefore, the Veteran's claim for service connection for right hand tremor is granted. III. TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). For the Veteran to prevail in his claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disabilities, is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran seeks entitlement to a TDIU due to service-connected disabilities. The Veteran's service connected disabilities include coronary artery disease, rated as 30 percent disabling, effective December 3, 2008, and 60 percent disabling, effective February 23, 2010; prostate cancer, rated as 100 percent disabling effective June 11, 2009, and 20 percent, effective March 1, 2012; cervical spine disability, rated as 10 percent, effective January 2, 2004; and hearing loss, rated as 0 percent disabling, effective July 27, 2006. As a result of the present Board decision, the Veteran also has been granted service connection for right hand tremor based on his service connection claim received in November 2003, but has not yet been assigned an effective date or disability rating for the right hand tremor. Presently, even without the rating assigned for the right hand tremor, the Veteran meets the rating criteria for a TDIU under 38 C.F.R. § 4.16(a), effective March 1, 2012, as he has one disability rated at least 40 percent disabling (i.e., coronary artery disease rated at 60 percent disabling) and sufficient additional disability ratings to achieve a combined rating of at least 70 percent (i.e., 20 percent rating for prostate cancer and 10 percent rating for cervical spine combining with the 60 percent rating for coronary artery disease). See 38 C.F.R. § 4.25. The next inquiry is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The Veteran filed a disability compensation claim in November 2003 noting that he was unable to work due to loss of use of his right hand. A December 2005 VA examination report also notes the Veteran had a coronary artery bypass graft in March 2005, and in December 2005, had stents replaced because of poor coronary circulation. SSA records note that the Veteran was in receipt of disability benefits for chronic ischemic heart disease with angina as a primary diagnosis, and heart failure as a secondary diagnosis, and that he last worked in January 2005. The Veteran described his limitations in ability to work as having a bad heart. He noted that he exhausted very very quickly and the intense pain of restricted blood flow to his heart caused an immediate restriction of any activity. He described his work history as being an electrical contractor from October 1979 to present. A January 2006 private EMG report notes, however, that the Veteran was working as an electrician, but it is not clear if this refers to his present or past work status. The Veteran reported on a July 2006 claim for disability compensation that his hearing loss prevented him from working. In May 2008, a VA examination report notes, however, that the Veteran indicated that he was an electrician but quit because of his hand tremor. A December 2010 VA examination report notes that the Veteran retired in 2004 because he was eligible by age or duration of work. It was noted that the Veteran's hereditary peripheral neuropathy had no effect on usual occupation, but that his hand numbness and tremor did affect his fine motor skills. A March 2011 VA addendum opinion notes that benign essential tremor was generally considered a slowly progressive disorder, which caused difficulties in performing fine motor skills and varying degrees of functional ability. For example, hand tremor might gradually cause difficulties with manipulating small objects. Given the Veteran's history of working as an electrician and the medical findings that the Veteran's right hand tremor affected his fine motor skills, in addition to the fact that he is in receipt of SSA disability benefits since 2005, when he reportedly stopped working, for chronic ischemic heart disease with angina as a primary diagnosis, and heart failure as a secondary diagnosis, which is also a service-connected disability, the Board resolves all doubt in the Veteran's favor that he has been rendered unemployable as a result of his service-connected disabilities, effective March 1, 2012. As for the period prior to March 1, 2012, the Veteran does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) as of that time. However, he also has not been assigned his disability rating and effective date for right hand tremor, as a result of this Board decision. For this reason, the issue of entitlement to a TDIU prior to March 1, 2012 is addressed in the remand section below. ORDER Entitlement to service connection for a right hand tremor is granted. Entitlement to a total disability rating based on individual unemployability due to the service-connected disabilities is granted, effective March 1, 2012, subject to the statutes and regulations governing the payment of monetary benefits. REMAND Although the Board granted TDIU as of March 1, 2012, the remaining matter before the Board is entitlement prior to that date given that he filed his claim in November 2003. The Veteran has been awarded service connection for right hand tremor in this Board decision and thus has not yet been assigned a disability rating or effective date for this disability. Thus, the RO should implement the Veteran's disability rating and effective date for his right hand tremor disability. Thereafter a medical opinion should be provided to determine whether the Veteran is rendered unemployable as a result of his service-connected disabilities prior to March 1, 2012. Accordingly, the case is REMANDED for the following action: 1. Implement a disability rating and effective date for the Veteran's right hand tremor. 2. Thereafter, provide for a VA medical examination and opinion to determine whether, prior to March 1, 2012, his service-connected disabilities rendered him incapable of obtaining and maintaining substantially gainful employment versus employment that was just marginal in comparison. It therefore is essential the designated examiner have opportunity to review the evidence in the claims file, including a complete copy of this decision and remand. Specifically, the examiner should review all relevant VA treatment records in the file dated from 2003 to 2012, including the December 2005 VA examination report, SSA records, May 2008 VA examination report, and December 2010 VA examination report with March 2011 VA addendum opinion. The VA examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. Ensure the examiner's opinions are responsive to the questions asked. If not, take corrective action. 38 C.F.R. § 4.2. 4. Then readjudicate this remaining claim in light of the additional evidence. If deemed warranted, refer this case to the Director of Compensation and Pension Service for consideration of a TDIU on an extra-schedular basis prior to March 1, 2012 under 38 C.F.R. § 4.16 (b). If this claim is not granted to the Veteran's satisfaction, send him and his representative another SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this remaining claim. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs