Citation Nr: 1338808 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 06-11 230A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a disability manifested by tremors of each upper extremity. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1970 to April 1972, January 2003 to October 2003, and November 2006 to September 2007. He has been awarded an Air Medal, Combat Infantryman Badge and a Purple Heart Medal. [The Board notes that the Veteran had additional periods of service with the Army National Guard which have not been conclusively verified. Insofar as he alleges that his initial diagnosis of bilateral hand tremors was at Bagram Air Base Afghanistan, the Board observes that any such service which places him in Afghanistan would have been federalized service (qualifying for VA compensation benefits).] This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Oakland, California Department of Veterans Affairs (VA) Regional Office (RO). In October 2009, March 2011 and April 2012 the claim was remanded for additional development. In July 2013, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA); such opinion was received in August 2013. As was noted in the April 2012 Board remand, the issues of service connection for PTSD and an increased rating for multilevel discogenic and degenerative changes of the lumbosacral spine have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). (See January 2011 statements from theVeteran) Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. FINDING OF FACT It is reasonably shown that the Veteran's essential tremor of the hands became evident in service and has persisted since. CONCLUSION OF LAW Service connection for Essential Tremor of the hands is warranted. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002); 38 C.F.R. § 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim of service connection for a disability manifested by tremor of each upper stremity. However, as the benefit sought is being granted, there is no reason to belabor the impact of the VCAA on this matter; any notice defect or duty to assist omission is harmless. Legal Criteria, Factual Background, and Analysis Initially, the Board notes all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed. The Board has reviewed not only the Veteran's physical claims file, but also his file on Virtual VA, to ensure a complete review of the record. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). A disease may be service connected if shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War. VA will pay compensation to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability, including neurologic signs or symptoms, provided that such disability became manifest either during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2016; and that, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. Lay evidence may be competent evidence to establish the etiology of a disability. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is needed where the determinative question is one requiring medical knowledge. Id. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, 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. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran claims that he had tremors of both hands in service and that such problems have persisted to the present. In his December 2003 claim the Veteran reported that his tremors began in 1993 and that he received treatment in 2003. In his February 2005 notice of disagreement, the Veteran stated that he did not have hand tremors prior to serving in Afghanistan (and that the tremors were the reason for his being taken off National Guard flight status following his return from deployment in Southwest Asia). He indicated that the diagnosis was made at the Bagram Air Base hospital in Afghanistan. In his April 2006 substantive appeal (VA Form 9) he asserted that the "tremor came about due to combat missions in Afghanistan." The Veteran's service treatment records (STRs), including for his periods of National Guard, service, are silent for complaints or findings related to tremors. The record shows that the Veteran served in combat in Afghanistan. He is entitled to consideration of his claim under the relaxed evidentiary standards afforded in such circumstances under 38 U.S.C.A. § 1154(b). 38 U.S.C.A. § 1154(b) does not create a presumption of service connection for a combat Veteran's alleged disability; the appellant is still required to meet the evidentiary burden as to service connection, such as whether there is a current disability or whether there is a nexus to service, both of which require competent evidence. The initial postservice clinical notation of tremors in on March 2004 VA examination when the Veteran reported experiencing intermittent tremors in both hands while holding his hands still since the 1970s (upon his return from service in Vietnam), and that they had gotten worse over the years. He also reported he had never been evaluated for such symptoms by a health care provider/neurologist. Neurologic evaluation revealed tremors in both hands when fully extended and at rest. The tremors stopped when he made a fist or held an object in his hands. The diagnosis was essential tremors, both hands, undetermined etiology. April 2008 private treatment records show that the Veteran complained "of a benign essential tremor which has never been treated." VA treatment records note the Veteran's complaints of progressively increasing hand tremors. STRs in April and August 2007 include notations of numbness and tingling. On January 2011 neurological evaluation it was noted that the Veteran "has a higher risk of progression to Parkinson's Disease in the future". On May 2011 VA examination, the Veteran reported that his tremors started in 2002 or 2003 when he was stationed in Afghanistan (the examiner noted that, on neurology consultation, the Veteran had reported that his tremors started "decades ago when he was serving in Vietnam.) Mild resting tremor in both upper extremities and on finger-to-nose testing was found on neurologic examination. The diagnosis was essential tremor with no underlying pathology or diagnosis causing the essential tremor. The examiner opined that, without corroborating evidence from his STRs, he could not determine whether the tremor was first manifested during service. The opinion offered was that the Veteran's essential tremor is not at least as likely as not (less than 50/50 probability) caused by or related to his duties during military service. May 2012 private treatment records show that the Veteran's tremor was getting worse and he was to be referred to a neurologist for reevaluation. This treatment report notes the Veteran's history of Dioxin exposure in Vietnam. On July 2012 VA examination, the diagnosis was essential tremor of both hands. The examiner noted that examination did not show significant Parkinsonian features and the conventional neurological literature does not indicate that essential tremor is a clear prelude to Parkinsonism. The examiner opined that, as the review of the record did not show "significant documentation" of essential tremor during service, essential tremor is less likely than not incurred in or caused by active duty service. Because the May 2011 and July 2012 VA examiners relied primarily on the lack of contemporaneous medical documentation to support the opinion that there is no nexus between the Veteran's current hand tremors and his service, the Board found their opinions inadequate and sought a VHA medical advisory opinion by a neurologist. In the VHA opinion (received in August 2013), the consulting expert, a neurologist, endorsed the diagnosis of essential tremor. The expert explained: Although the year of onset of the appellant's tremors is not consistently reported by the appellant in the medical records, documentation as reviewed above supports that after at least 9 years of bilateral hand tremors there were still no signs on his neurological examination that supported an underlying diagnosis of Parkinson's disease. Documented features supportive of a diagnosis of Essential Tremor include the longstanding presence of bilateral hand tremors that affect use of the hands. Features that are less consistent with Essential Tremor include presence of tremors in his hands at rest, however there is no clear documentation of the presence of an asymmetric rest tremor that would support Parkinson's disease. Furthermore, there were no additional signs noted on the July 2012 neurological examination that are supportive of the presence of Parkinson's disease including bradykinesia, rigidity, imbalance, or gait difficulties. The VHA consulting expert opined: 1) it is not at least as likely (less than 50 percent probability) that the Veteran's Essential Tremor is related to his service in Vietnam, 2) it is not at least as likely (less than 50 percent probability) that the Veteran's Essential Tremor is related to his service in Southwest Asia, and 3) it is not at least as likely (less than 50 percent probability) that the Veteran's Essential Tremor is related to his occupational duties. The expert explained: As above, the likely cause of the appellant's longstanding hand tremors is Essential Tremor. Despite being a common neurological condition, the etiology of Essential Tremor is not known. It is frequently a familial condition, suggesting a genetic cause in an estimated up to half the cases. Some environmental factors have been proposed to play a role in the etiology of Essential Tremor, but there is not sufficient scientific evidence to demonstrate a causative link between any particular exposure and Essential Tremor. Upon review of the record, the Board once again notes that the Veteran served in combat, and that he contends that his current bilateral hand tremors resulted from combat missions in Afghanistan. The Board finds the Veteran's statements regarding the onset of tremors in service to not be inconsistent with the circumstances of his combat service, and to be credible. See 38 U.S.C.A. § 1154(b). The competent medical evidence of record clearly reflects that the Veteran has a current diagnosis of essential tremor of the hands. See August 2013 VHA expert's opinion with accompanying rationale. While the August 2013 VHA consulting physician observed that "the etiology of Essential Tremor is not known" and opined that the Veteran's essential tremor is not [emphasis added] at least as likely (less than 50 percent probabillity) related to his service in Vietnam, or Southwest Asia (including as an undiagnosed illenss due to environmental exposure therein) or due to his occupational (flight) duties; he also noted [without rejecting as not credible] that the Veteran's reports that his hand tremors started during service. The Board notes that the May 2011 and July 2012 VA examiners provided opinions against the Veteran's claim; however, as these opinions failed to consider (did not acknowledge) the Veteran's lay statements that he had the tremors in service (an observation he is competent to report). As they are premised on a less than complete factual record, they are lacking in probative value. [Notably, whether or not the Veteran experienced hand tremor in service is essentially an adjudicatory determination, not a medical question.] The Board finds that the record supports the Veteran's accounts that he experienced hand tremor in service, particularly in light of the relaxed evidentiary standards under 38 U.S.C.A. § 1154(b). In summary, the Board finds that the record shows that persistent hand tremors became evident in service and have been manifested continuously since. Therefore, the evidence supports the Veteran's claim that his hand tremors were incurred in service, and service connection for essential tremor of the hands is warranted. ORDER The appeal seeking service connection for essential tremor of the hands is granted. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs