Citation Nr: 1513966	
Decision Date: 04/01/15    Archive Date: 04/09/15

DOCKET NO.  13-06 454	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for disability manifested by hand tremors.

2.  Entitlement to service connection for sleep apnea.

3.  Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	Jill Mitchell, Attorney at Law


ATTORNEY FOR THE BOARD

Bridgid D. Houbeck, Counsel


INTRODUCTION

The Veteran served on active duty from September 1967 to April 1970.

This matter has come before the Board of Veterans' Appeals (Board) on appeal from a June 2010 and October 2010 rating decisions of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO).

(The issues of service connection for sleep apnea and entitlement to TDIU are addressed in the remand that follows the decision below.)


FINDING OF FACT

A disability manifested by hand tremors is not related to the Veteran's military service.


CONCLUSION OF LAW

The Veteran does not have a disability manifested by hand tremors that is the result of disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.303 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014).

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record that is necessary to substantiate the claim, the information that VA will seek to provide, and the information that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Additionally, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).  The Board finds that the required notice was met through correspondence sent to the Veteran during the course of the claim.

VA also has a duty to assist the Veteran in the development of the claim, which includes assisting in the procurement of service treatment records and pertinent post-service treatment records and, when necessary, providing an examination.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration.  These four factors are:  (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).

With respect to the third factor, the United States Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service.  The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).

In this case, the service treatment records are silent as to any complaints or treatment for hand tremors.  Moreover, the post-service evidence does not indicate any current complaints or treatment referable to hand tremors until several decades following separation.  Furthermore, the record contains no competent evidence suggesting a causal relationship between the post-service disability and the Veteran's period active military service.  For these reasons, the evidence does not indicate that the claimed disability may be related to active service such as to require an examination, even under the low threshold of McLendon.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed.  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA treatment and examination.  Moreover, his statements in support of the claim are of record.  The Board has reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.

For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Analysis

In order to prevail on the issue of direct service connection, there must be competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability.  See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

In this case, the record contains a current diagnosis of essential hand tremors.  See May 2010 VA treatment record.  

The Veteran's service treatment records are silent with regard to complaints of, treatment for, or diagnosis of hand tremors.  The Veteran has not presented any lay evidence of an in-service disease or injury that is associated with his current condition.  Similarly, the Veteran's post-service treatment records do not refer to any such incident during military service.  As such, there is no evidence of an in-service occurrence or aggravation of a disease or injury and the claim fails on that basis.

Although the law provides that certain chronic diseases, including organic diseases of the nervous system, may be presumed to have been incurred in or aggravated by active military service if manifested to a compensable degree within a year of separation from service, see 38 C.F.R. §§ 3.307, 3.309, no such disease process was evident in this case during the first year following the Veteran's military service.  

In short, for reasons expressed immediately above, the claim of service connection for disability manifested by hand tremors must be denied.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not helpful to the claimant.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).


ORDER

Service connection for disability manifested by hand tremors is denied.


REMAND

The Veteran has argued that his sleep apnea is due to or has been aggravated by his service-connected posttraumatic stress disorder (PTSD).  Although the Veteran underwent a VA examination in October 2012, the resulting opinions did not address this theory of aggravation.  As such, an addendum opinion is necessary.

In a November 2010 decision, the Social Security Administration (SSA) found the Veteran disabled since October 2008 due to degenerative disc disease of the lumbar spine, hepatitis C, hypertension, hypercholesterolemia, sleep apnea, hand tremors, and posttraumatic stress disorder.  Of these, the Veteran is currently service connected for PTSD.  A positive decision on the service connection claim for sleep apnea, another of the conditions that SSA found contributed to his disability, could have an impact on his TDIU claim.  As such, the issue of TDIU is intertwined with the sleep apnea claim and must also be remanded to the RO.  See Henderson v. West, 12 Vet. App. 11, 20 (1998), Harris v. Derwinski, 1 Vet. App. 180 (1991); Parker v. Brown, 7 Vet. App. 116, 118 (1994).

Accordingly, the case is REMANDED for the following action:

1.  Refer the Veteran's claims folder to the October 2012 VA examiner or, if he is unavailable, to another suitably qualified VA examiner for the purpose of obtaining an addendum opinion that specifically addresses the question of aggravation.  The examiner should provide an opinion as to the medical probabilities that the Veteran's PTSD has made worse his sleep apnea.

Also, the examiner should comment on the extent to which the Veteran's sleep apnea affects his ability to secure or follow substantially gainful employment.

The examiner must provide a rationale for any opinion given.  If the examiner is unable to provide an opinion without resort to speculation, he or she must provide reasons as to why this is so, and state whether the inability is due to the limits of scientific or medical knowledge or whether there is additional evidence that would permit the needed opinion to be provided.
 
2.  After completion of the above, any additional development deemed appropriate should be undertaken in order to properly address the issue of TDIU.

3.  Thereafter, the originating agency should readjudicate the claims in light of the additional evidence obtained.  If any of the benefits sought is not granted, issue a supplemental statement of the case and give the Veteran and his representative opportunity to respond before the record is returned to the Board.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This case must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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 2014).



________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs