Citation Nr: 1328433 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 10-01 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for essential tremor, claimed as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for right ear hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from June 1951 to June 1955, and from July 1955 to August 1959. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). With respect to the issue of entitlement to service connection for essential tremor, the Veteran's appeal was last remanded by the Board in January 2013 to obtain a VA opinion as to the likelihood that his current disability was caused or aggravated by his service-connected PTSD. The requested opinion was obtained in March 2013. Accordingly, the Board finds that there has been substantial compliance with the directives of the January 2013 Remand, such that an additional remand to comply with such directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The medical term "essential" means of unknown cause or origin (i.e. idiopathic). See Dorland's Illustrated Medical Dictionary (31st Ed. 2007). Although the Veteran has been consistently diagnosed with "essential tremor", he has asserted that his tremor is secondary to his service- connected PTSD and the Board will address the secondary service connection claim. The Veteran has made no argument with respect to direct service connection for his tremors in conjunction with the current claim and appeal. The issue of entitlement to service connection for right ear hearing loss 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. FINDING OF FACT The evidence of record does not relate the Veteran's currently diagnosed essential tremors to his military service or to any service-connected disability. CONCLUSION OF LAW The criteria for service connection for essential tremors have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Correspondence dated in February 2008 satisfied the duty to notify provisions prior to the initial adjudication of the issue on appeal by the agency of original jurisdiction (AOJ). This letter also advised the Veteran that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). The Veteran's service treatment records and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. A VA opinion relevant to the issue decided herein was most recently obtained in March 2013; the Veteran has not argued, and the record does not reflect, that this opinion was inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The opinion in question addressed the issue on appeal and provided a nexus opinion accompanied by rationale. There is no indication in the record that any additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). The Veteran is competent to give evidence about what he experienced; for example, he is competent to discuss experienced symptoms. See, e.g., Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In addition, the lay statements submitted on the Veteran's behalf are competent to discuss their authors' personal observations concerning the Veteran. The Veteran and his lay witnesses are not, however, generally competent to render an opinion as to the cause or etiology of any current disorder because they do not have the requisite medical knowledge or training. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The question of the etiological relationship between PTSD and the Veteran's current essential tremor, including whether caused or aggravated by his PTSD, is a complex medical question that requires medical expertise to address. The Veteran may have an honest belief that his disabilities are caused or aggravated by his PTSD, but medical evidence is required to establish such a relationship. With respect to the issue of entitlement to service connection for essential tremor, the Veteran contends that high anxiety levels associated with his service-connected PTSD have either caused or aggravated his tremors. Significantly, the evidence does not show that the essential tremor for which he currently seeks entitlement to service connection had its onset in service. Indeed, although he complained of headaches for three days in March 1953 as well as pressure on the nape of his neck which caused pain on the top of his head in March 1954, his July 1959 Report of Medical Examination indicated that he was within normal limits neurologically, and he explicitly denied experiencing frequent headaches, severe headaches, dizziness, or fainting spells at the time of his separation. The Veteran initially filed a claim for entitlement to malarial/hemorrhagic fever residuals in September 2004, alleging that his tremors were due to malaria incurred in service. He was provided with a VA infectious disabilities examination in April 2005, at which time the examiner opined that the Veteran's recurrent episodes involving central nervous system function were poorly explained and possibly transient ischemic manifestations. However, the examiner concluded that malaria was never definitively diagnosed in the Veteran, and that the symptoms experienced by the Veteran were not yet adequately clarified, although entirely independent of his military service. Based on this examination report, the RO denied the Veteran's claim for entitlement to service connection for malaria in April 2006, and the Veteran did not appeal that decision. A December 2007 VA treatment note indicated that the Veteran informed his VA psychiatrist that a private physician indicated his tremors may be related to his service- connected PTSD, and that the Veteran wanted the VA psychiatrist to write a statement opining that his tremors were, in fact, due to his PTSD. The VA psychiatrist indicated that the Veteran was merely striving to add something to his list of service-connected disorders, and opined that his tremor was probably Parkinsonian and progressive, but not connected in any causal way with his PTSD diagnosis. The Veteran was afforded a VA PTSD examination in August 2009, at which time "essential tremor" was listed as a non- psychiatric medical problem relevant to psychiatric assessment and/or treatment. An October 2009 VA Examination for Housebound Status or Permanent Need for Regular Aid and Attendance indicated that the Veteran had a moderate tremor of the upper extremities and was unable to feed himself or administer medications, but did not offer an opinion as to the likely etiology of the tremor. Similarly, a May 2010 VA Aid and Attendance or Housebound Examination report indicated that the Veteran had essential tremor which caused substantial impairment in his daily inability to ambulate ad care for self, but did not offer an opinion as to the disorder's likely etiology. In May 2011, the RO scheduled a VA neurological disorders examination to determine whether the Veteran's essential tremor was caused or aggravated by his service-connected PTSD. However, in June 2011, the Veteran's spouse indicated that he could not attend the scheduled examination because he received surgical repair for a broken hip and needed at least 8 weeks recovery time before he could travel for an examination. The examination was rescheduled for November 2011, but the Veteran's spouse indicated that the Veteran could not report for the examination because he was unable to walk, unresponsive most of the time, and suffering from dementia. A review of recent VA treatment records confirms that the Veteran now receives VA home healthcare services at his place of residence. A VA medical opinion was obtained in March 2013, at which time the physician opined that the Veteran's tremors were less likely than not (less than 50 percent probability) incurred in or caused by the Veteran's PTSD. The physician explained that the Veteran was clearly diagnosed as having essential tremor, and that he was not diagnosed as having Parkinson's tremor, neuropathic tremor, orthostatic tremor, or any other tremor secondary to a defined structural abnormality of the brain or nerves. The physician emphasized that he did not have a diagnosis of, nor did the evidence show, psychogenic tremor or other tremor diagnosis. The physician explained that essential tremor was not related etiologically to psychiatric diagnoses, nor to exposures. As such, the physician concluded that the essential tremor was less likely than not secondary to his service connection PTSD or to military service. Moreover, the physician opined that there was no evidence of progression beyond the natural progression of his essential tremor, and that it was less likely than not that there was any aggravation of his essential tremor due to his service connection PTSD. No other medical opinions of record contradict this conclusion. Ultimately, the evidence of record confirms the VA examiner's opinion, the criteria for service connection for essential tremor as secondary to service-connected PTSD have not been met, and the Veteran's claim must be denied. The preponderance of the evidence is against the claim. There is no doubt to be resolved, and service connection is not warranted. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. 54-56. ORDER Entitlement to service connection for essential tremor, claimed as secondary to service-connected PTSD, is denied. REMAND The Veteran also seeks entitlement to service connection for right ear hearing loss. With respect to the issue of entitlement to service connection for right ear hearing loss, the Veteran's service records show that he was an Airman, First Class, in the Air Force and served as an Aircraft Control & Warning Operator. The Veteran has already been awarded service connection for left ear hearing loss and tinnitus. At his July 1959 Report of Medical Examination at discharge, an audiological examination was conducted and puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 (10) (0) 10 -5 (-5) 5 (15) 15 (20) LEFT -5 (10) -5 (5) (0) 10 40 (50) 40 (45) Prior to November 1967, audiometric test results were reported in standards set forth by the American Standards Association (ASA). Those are the figures on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses. The Veteran was provided a VA audiological examination in February 2008, at which time he was diagnosed as having mild-to-severe sensorineural hearing loss from 250 hertz through 8000 hertz in the right ear, with fair speech recognition ability. Acoustic reflexes were absent. The examiner assumed that the Veteran was exposed to aircraft noise while in service. Following a review of the Veteran's service treatment records, the examiner noted that the speech testing upon the Veteran's entrance into service suggested normal hearing, while his hearing test upon discharge from active duty in 1959 revealed normal hearing in the right ear and a mild high-frequency loss in the left ear. As such, the examiner opined that the service treatment records supported the Veteran's claim of service- connected hearing loss in the left ear only, and that there was no evidence of hearing impairment as a result of military service in the right ear. Based on these examination results, the RO granted entitlement to service connection for left ear hearing loss but denied his claim for service connection for right ear hearing loss. In the Veteran's November 2012 Informal Hearing Presentation, his accredited representative persuasively argued that the VA examiner's February 2008 medical opinion was based entirely on the Veteran having hearing acuity in the right ear within normal limits upon his separation from service. As such, in its January 2013 remand, the Board found that the February 2008 medical opinion failed to meaningfully address the issue of whether the Veteran's right ear hearing loss was incurred in service, regardless of whether it was shown to meet the provisions of 38 C.F.R. § 3.385 in service or on service separation. See Hensley v. Brown, 5 Vet. App. 155 (1993) (holding that if hearing loss as defined by 38 C.F.R. § 3.385 is not shown in service or at separation from service, service connection can be established if medical evidence shows that it is actually due to incidents during service). Specifically, in its January 2013 remand, the Board found that the February 2008 VA audiological examination report did not indicate when the Veteran's current right ear hearing loss was first shown following his military service. Moreover, the VA examiner's opinion failed to provide any other rationale for the conclusion reached therein. Thus, the Board found the February 2008 VA audiological examination to be inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (finding that if VA provides the Veteran with an examination in a service connection claim, the examination must be adequate). Pursuant to the Board's January 2013 remand instructions, another VA audiological opinion was obtained in June 2013. However, the June 2013 VA audiologist simply concluded that, "It is at least as likely as not that the veteran's hearing loss and tinnitus left ear at time of service was due to military noise exposure. Any further hearing loss of right or left ear that was beyond military service." In support of this conclusion, the audiologist simply stated that the Veteran's 1959 separation examination showed normal right ear hearing loss, and that there were no current audiograms to compare to the 1959 examination. However, audiograms as recent as the February 2008 VA audiological examination are associated with the claims file. Thus, the Board finds the June 2013 VA opinion inadequate for purposes of determining service connection. As such, a remand is again necessary to ensure compliance with the terms of the January 2013 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claims file to the VA audiologist who provided the June 2013 opinion and ask that an addendum opinion be provided. Specifically, after a review of the entire evidence of record, and with consideration of the Veteran's previous statements, the audiologist must render an opinion, in light of the service and post service evidence of record, as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current right ear hearing loss is related to the Veteran's period of military service from June 1951 to August 1959, or to any incident therein, to include as due to aircraft noise exposure. The Veteran's military occupational specialty, the objective medical findings in the service medical records, the previous VA audiological evaluation currently of record, the Veteran's history of in-service and post-service noise exposure, and any other pertinent clinical findings of record must be taken into account. Importantly, the examiner must not base the required opinion solely on whether right ear hearing loss was shown in service or on service separation. The examiner must specifically address the question of whether any degree of current right ear hearing loss is a result of his military service or to any incident therein, to include as a result of in- service noise exposure, including consideration of any upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385. A complete rationale for all opinions must be provided. In providing this rationale, the examiner is asked to take note that audiometry results as recent as February 2008 are associated with the claims file. If the February 2008 VA examiner is unavailable, forward the Veteran's claims file to another VA examiner of the appropriate expertise in audiology for the requested opinion. After review of the claims file and a copy of this remand, the examiner is asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's currently diagnosed right ear hearing loss is caused by or otherwise related to his military service, to include aircraft noise exposure. 2. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim on appeal must be readjudicated. If the claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs