Citation Nr: 1337629 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 06-07 815 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for tremors of the lower extremities, to include as secondary to service-connected frostbite of the feet. REPRESENTATION Veteran represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran, his spouse, and friend ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from January 1946 to December 1948. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In August 2009, the Veteran presented sworn testimony during a personal hearing in Montgomery, Alabama, which was chaired by the undersigned. A transcript of the hearing has been associated with the Veteran's VA claims file. In a December 2009 decision, the Board, in pertinent part, reopened the claim of entitlement to service connection for residuals of cervical discectomy with radiculopathy of the upper right extremity, and remanded that claim on the merits, along with the claim of entitlement to service connection for residuals of frostbite of the feet, and deferred the claim of whether new and material evidence had been received to reopen entitlement to service connection for tremors of the lower extremities pending development of the other claims. In April 2011, the RO granted entitlement to service connection for frostbite of the feet. In a September 2011 decision, the Board determined that new and material evidence had not been received to reopen the claim of entitlement to service connection for tremors of the lower extremities, and denied entitlement to service connection for residuals of a cervical discectomy with radiculopathy of the upper right extremity. The Veteran filed a timely appeal to the United States Court of Appeals for Veterans Claims (the Court). Per a September 2012 Memorandum Decision, the Court vacated the September 2011 Board decision, reversing and remanding the determination that new and material evidence had not been received to reopen the claim of entitlement to service connection for tremors of the lower extremities, and remanding the determination that service connection was not warranted for residuals of a cervical discectomy with radiculopathy of the upper right extremity. In a March 2013 decision, the Board reopened the claim of entitlement to service connection for tremors of the lower extremities and remanded both claims for further evidentiary development. In an April 2013 decision, the Board denied entitlement to service connection for cervical discectomy with radiculopathy of the right upper extremity, and remanded the issue of entitlement to service connection for tremors of the lower extremities. This issue is again before the Board for further appellate review. Please note 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). FINDING OF FACT Tremors of the lower extremities were not manifested during service and are not otherwise due to service, and tremors of the lower extremities are not proximately due to or aggravated by service-connected frostbite of the feet. CONCLUSION OF LAW The criteria for service connection for tremors of the lower extremities have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In a pre-adjudication letter dated in February 2005, the RO notified the Veteran of the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). This letter also informed him of the types of evidence that would be considered to substantiate his claims and the information and evidence needed to sustain a claim for service connection. In April 2010, the Veteran was provided with a letter notifying him of the evidence necessary to support a disability rating and effective date. Any timing defect of this notification was resolved by readjudication of the claim in supplemental statements of the case issued in April 2011, April 2013, and August 2013. Neither the Veteran nor his representative has alleged that notice has been less than adequate. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that a party alleging defective notice has the burden of showing how the defective notice was harmful). Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). Post-service medical records have been associated with the claims file. It has been known since early 1978, that the Veteran's service treatment records (STRs), were apparently destroyed in the 1973 fire at the National Personnel Records Center (NPRC). In cases where the Veteran's service records are unavailable, a heightened duty exists to assist the Veteran in the development of the case. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). But missing or damaged STRs, alone, while indeed unfortunate, do not obviate the need for him to still have medical nexus evidence supporting his claim by suggesting a correlation between his currently claimed condition and his military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). In this case, VA has previously made unsuccessful attempts in the past to obtain or reconstruct the missing records. Thus, the Board concludes the VA's heightened duty to assist the Veteran is satisfied. VA provided the Veteran the opportunity to have a hearing. The Veteran testified before the undersigned in August 2009. In Bryant v. Shinseki, 23 Vet. App. 488, the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the Veterans Law Judge explained the evidence necessary to establish the claim for service connection, and inquired about outstanding medical evidence and dates of treatment. Neither the Veteran nor his representative have asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. The Board finds that the Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) extant at the time of the hearing. As detailed hereinabove, the Board reopened the Veteran's claim for entitlement to service connection for tremors of the lower extremities and remanded the issue in March 2013, in order to provide the Veteran with a VA examination to determine whether tremors of the lower extremities had been aggravated by his service-connected frostbite of the feet. In April 2013, the Veteran was afforded a VA examination; however, the examiner failed to provide the required opinion regarding aggravation. The issue was again remanded in July 2013, in order to obtain current VA medical records and to provide the Veteran's claims file to a VA examiner in order to obtain an opinion as to whether the Veteran's tremors of the lower extremities were aggravated by his service-connected frostbite of the feet. The Veteran's current VA medical records have been associated with the Veteran's Virtual VA online claims file and have been considered in adjudicating this claim. In July 2013, a VA examiner provided an opinion as to whether the Veteran's tremors of the lower extremities have been aggravated by his service-connected frostbite of the feet. The Board finds that the VA opinions obtained with regard to the Veteran's claim for entitlement to service connection for tremors of the lower extremities are collectively adequate because, as shown below, they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because the reports describe the disability in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Criteria & Analysis 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, 1131; 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); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. A current disability must be present for a valid service connection claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (complaints of pain alone do not meet the current disability threshold); Evans v. West, 12 Vet. App. 22, 31-32 (1998). More recently, the Court has held that the current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. McLain v. Nicholson, 21 Vet. App. 319 (2007). Service connection may also be granted for a disease first diagnosed after discharge 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). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established. This baseline is to be established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). The rating activity is to determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. Id. In adjudicating these claims, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. See also 38 C.F.R. § 3.159(a)(2) (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 the facts or circumstances and conveys matters that can be observed and described by a lay person). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). At an August 2003 Board hearing, the Veteran's wife testified that the Veteran's tremors had been present for "years and years" when he "came out of service." T. at 11. The Veteran, however, testified in the same hearing that the tremors began after he was underwent a neck surgery in 1971. T. at 23, 26. At the August 2009 Board hearing before the undersigned, the Veteran and his wife both testified that he had tremors when he left service. They indicated that a doctor had attributed his tremors to the treatment he received in service for syphilis. The Veteran indicated that his tremors began after this in-service treatment. He has also contended that his essential tremors are secondary to his service-connected cold injuries to the lower extremities. The Veteran's STRs are presumably destroyed by fire at the NPRC in 1973, but among the records was a service separation examination report which was absent for pertinent findings. The Veteran was provided with a VA examination in October 1978. The examiner noted a tremor in the upper and lower extremities, which the Veteran stated began in 1971. The assessment was tremors of unknown etiology. In a December 1978 letter, a private physician, T.K., M.D., stated that the Veteran complained of tremors in his hands with the onset in 1976. The impression was essential tremor. Nerve conduction studies in July 2010 revealed a diffuse axonal polyneuropathy. The examiner who conducted the March 2011 VA cold protocol examination diagnosed diffuse axonal polyneuropathy that was less likely than not related to his cold injury, as it is a more proximal disorder and involves axonal involvement, not peripheral. The Veteran was afforded another VA examination in April 2013. The examiner opined that the Veteran's tremors were less likely as not related to or caused by his time in service, his service-connected frostbite, or his neck condition. The examiner noted that the Veteran's tremors were due to essential tremor, which was very well documented and had been ongoing since the 1970's. The examiner found that essential tremors were the most common neurological disorder that caused postural or action tremor. The incidence of essential tremor increased with age, although it often affected young individuals, especially when familial. The examiner noted that accumulating evidence suggests that the neuropathology of essential tremors is localized in the brainstem and cerebellum. In this regard, it is a central nervous system condition, and not a peripheral nerve condition. The examiner also noted that the treatment in service was for syphilis, and not essential tremor, and that essential tremor had no cause and effect relationship with lumbar punctures, medications for syphilis, frostbite to extremities or cervical spine degenerative disc disease. The Veteran's claims file was returned to a VA examiner in July 2013 in order to obtain an opinion as to whether the Veteran's essential tremor has been aggravated by his service-connected cold injuries to the lower extremities. The examiner noted that the Veteran's service treatment records did not show any onset of this condition in service. The examiner noted that essential tremors are not caused by peripheral nerve injuries such as cold injuries, and that essential tremors were believed to be caused by a defect in the brainstem. There is no medically accepted cause and affect link between peripheral nerve injury from cold exposure and essential tremor. In addition, the examiner opined that there was no pathophysiologic connection between the conditions such that an aggravation could occur. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan, supra. The evaluation of evidence generally involves a three step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Then, the Board must determine whether the evidence is credible. The Board must make an express credibility finding regarding lay evidence. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Finally, the Board must weigh the probative value of the proffered evidence in light of the entirety of the record. In assessing the evidence of record, the Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). The competence of evidence, the Court has held, is a legal concept, which is useful in determining whether testimony may be heard and considered by the trier of fact, while the credibility of such evidence is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker, 10 Vet. App. at 74. The medical evidence of record clearly shows that the Veteran has a current diagnosis of essential tremors, meeting one of the fundamental requirements of service connection. Brammer. Thus, the issue in this case is whether the evidence of record, including medical and lay evidence, attributes his essential tremors to service or a service-connected disability. The Veteran and his wife have reported that he began having tremors when he returned from service. The Board notes that he is competent to report symptoms that the lay witness observed and is within the realm of his or her personal knowledge; that is, those which are perceived through the use of the senses. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Tremors are such a category. Therefore, the Veteran and his wife are competent to provide lay evidence with regard to his essential tremors. As noted above, however, the inquiry regarding his lay evidence does not stop here. The Board is required to make a determination with regard to the credibility of the lay evidence in the record which supports the Veteran's claim. In such an instance, the Veteran's credibility affects the weight to be given to his testimony, and it is the Board's responsibility to determine the appropriate weight. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When weighing lay evidence such as this, the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character. Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (citing State v. Asbury, 415 S.E.2d 891, 895 (W. Va. 1992)). Personal interest may also affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). In this case, the Board finds that the Veteran's reports of essential tremors when he returned from service are less than credible for the following reasons. The Veteran has repeatedly contradicted himself with regard to the onset of his tremors. At the most recent Board hearing, the Veteran reported that his tremors were present when he returned from service. Again, such testimony was offered over a half century after separation from service. However, at his August 2003 Board hearing, he reported that the tremors began after his 1971 surgery. Likewise, at his October 1978 examination, the Veteran indicated that the tremors began in 1971. In addition, in December 1978, the Veteran complained of tremors in his hands with the onset in 1976. The Board finds that the statements offered in the course of treatment to be more credible than those offered over a half century later in support of a claim for compensation. For these reasons the Board concludes that the Veteran's statements with regard to the in-service onset of his tremors and the continuation of it from his discharge are contradictory and thus lack credibility. The Board notes that the Veteran's wife has also testified that his essential tremors were present when he returned from active duty. Again, her assertions were also offered over a half century after the Veteran separated from service and conflict with statements offered by the Veteran in the early 1970's, in the course of treatment. This weighs against the credibility of her statements. Considered in light of the Veteran's conflicting statements regarding the onset of his essential tremors, this passage of time weighs against the credibility of these lay statements. The Veteran and his wife have also contended that his essential tremors are secondary to his service-connected frostbite of the feet. To the extent that the lay statements by the Veteran and his wife can be accorded probative value in deciding this case, the Board observes that while lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, they are not competent to establish that which would require specialized knowledge or training, such as medical expertise. The Board finds that the question regarding the potential relationship between his essential tremors and frostbite of the feet to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, as the evidence of record fails to show that the Veteran or his wife have the requisite medical expertise to render such an opinion, the Board accords their statements regarding the link between his essential tremors and his service-connected frostbite of the feet little probative value as they are not competent to opine on such a complex medical question. In terms of medical evidence providing an etiology between the Veteran's current essential tremors and service or his service-connected frostbite of the feet, the Board notes that there is no medical evidence which provides such a link. The VA opinions dated in March 2011, April 2013 and July 2013 reflect the examiners' opinions that the Veteran's essential tremors are not caused or aggravated by his service-connected cold injuries to the feet. These examiners provided a clinical rationale, explaining that the source of essential tremors lies in the brain, whereas peripheral nerve injuries, such as the Veteran's service-connected cold injuries, are not related to the brain. The examiner's found that this would preclude a relationship between the Veteran's essential tremors and his service-connected cold injuries. With regard to direct service connection, the April 2013 VA examiner noted that the treatment in service for syphilis, including lumbar punctures and medications, had no cause and effect relationship with essential tremor. Therefore, there is no medical evidence that supports the Veteran's contentions that his essential tremors are related to service or caused or aggravated by a service-connected disability, service connection for tremors of the lower extremities is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for tremors of the lower extremities. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107. ORDER Service connection for tremors of the lower extremities, to include as secondary to service-connected frostbite of the feet, is denied. ____________________________________________ M.W. KREINDLER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs