Citation Nr: 1647740	
Decision Date: 12/22/16    Archive Date: 01/06/17

DOCKET NO.  13-30 197	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Fort Harrison, Montana


THE ISSUES

1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for bilateral familial hand tremors.

2. Entitlement to service connection for bilateral familial hand tremors.

3. Entitlement to service connection for right shoulder degenerative arthritis.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. Wendell, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1980 to July 1995, January 2000 to June 2000, July 2000 to February 2001 and January 2009 to April 2011, with an additional period of active duty for training (ACDUTRA) from August 1979 to December 1979.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. 

In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995).

The RO reopened the claim of service connection for bilateral familial hand tremors in its February 2013 rating decision, and then subsequently denied the claim on the merits. As the AOJ has adjudicated the claim on appeal on the merits, the Board finds that a decision on the merits in this appeal would not be prejudicial to the Veteran. See Hickson v. Shinseki, 23 Vet. App. 394 (2010).

The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in July 2016. A transcript of the hearing is associated with the electronic claims files.

The Board has reviewed the electronic records maintained in both Virtual VA and the Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence.


FINDINGS OF FACT

1. A March 2012 rating decision denied service connection for bilateral hand tremors. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one year appellate period.

2. The evidence associated with the claims file subsequent to the March 2012 rating decision is not cumulative and redundant of evidence previously of record.

3. Bilateral familial hand tremors were manifest during active service from August 1980 to July 1995.

4. The Veteran's right shoulder traumatic arthritis is attributable to service.


CONCLUSIONS OF LAW

1. The March 2012 rating decision is final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012).

2. New and material evidence sufficient to reopen the claim of service connection for bilateral familial hand tremors has been received. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a), (c) (2016).

2. Bilateral familial hand tremors were incurred in peacetime service. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016).

3. Right shoulder traumatic arthritis was incurred during wartime service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Veterans Claims Assistance Act of 2000 (VCAA)

VA has a duty to provide notice and assistance with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). However, in light of the fully favorable decision as to the issues decided herein, no further discussion of VA's duty to notify and assist is necessary. Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007).

II. New and Material Evidence

Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. 

New and material evidence is not required to reopen a claim when, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. 38 C.F.R. § 3.156(c). Relevant records are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010).

For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether new and material evidence has been submitted.

Here, the RO last denied service connection for bilateral hand tremors in March 2012. The Veteran was notified of the decision, but did not submit any statements expressing disagreement with the March 2012 decision, nor was new and material evidence received during the appellate period. 38 C.F.R. § 20.201 (2012). Therefore, the March 2012 rating decision became final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 20.201, 20.302 (2012). 

The evidence of record in March 2012 consisted of the Veteran's service treatment records, VA treatment records prior to March 2012, and a VA examination report diagnosing bilateral essential tremors. The evidence of record failed to establish an in-service event, injury or disease or a nexus between the disability and service. 

Evidence received since the rating decision includes additional VA treatment records, private treatment records, further VA medical opinions, lay statements and testimony from the Veteran, and a lay statement from the Veteran's sister. Of particular note, in his lay statements the Veteran asserts that his tremors were caused by his anthrax vaccination while in service, thus alleging an in-service event, injury or disease. 

The evidence provided by the Veteran is new and material as it related to a previously unestablished fact, specifically an in-service event, injury or disease. Therefore, reopening of the claim for service connection for bilateral familial hand tremors is warranted.

III. Service Connection

Generally, to establish service connection a Veteran must 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 

Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include arthritis and organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For arthritis and organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3).

For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings.  When the fact of chronicity is not adequately supported, then a showing of continuity after discharge is required to support the claim.

Where defects, infirmities or disorders are not noted when examined, accepted, and enrolled for service, the Veteran is presumed sound. 38 U.S.C.A. §1111; 38 C.F.R. § 3.304. In order to rebut the presumption of soundness on entry into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089   (Fed. Cir. 2004).

Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as opposed to the symptoms of that disability, has worsened. Beverly v. Brown, 9 Vet. App. 402, 406 (1996).

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a). 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, (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, 1377 (Fed. Cir. 2007). 

Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

A. Bilateral Familial Hand Tremors

The Veteran has bilateral familiar or essential tremors. Concerning the presence of an in-service event, injury or disease, the Board notes that an April 1998 treatment record shows complaints of hand tremors. While this record follows the Veteran's period of ACDUTRA from August 1979 to December 1979 and active service from August 1980 to July 1995, it indicates that the bilateral hand tremors pre-existed his service from January 2000 to June 2000, July 2000 to February 2001 and January 2009 to April 2011. This fact alters the service connection analysis with respect to the Veteran's periods of service after April 1998. As such, the Board will analyze whether service connection is warranted for the period of service prior to April 1998 first, followed by the periods of service after April 1998.

Concerning the service prior to April 1998, the Veteran has reported that his hand tremors had their onset during his period of service from August 1980 to July 1995, which he is competent to report. Jandreau, 492 F.3d 1372. There is no evidence that the Veteran's reports concerning onset are not credible, and therefore the statements are entitled to probative weight.  In addition, when he was seen in November 1981 there were hyperactive reflexes.  In hindsight, the post-service diagnosis cannot be disassociated from the in-service hyperactive reflexes.

To the extent that the disorder may have been inherited or genetic in origin, that fact is not relevant unless it is established that the condition is a defect rather than a disease.  Nothing in the record establishes that the condition is a defect or that the condition meets the definition of defect as established by General Counsel. As the evidence shows that an organic disease of the nervous system, specifically bilateral hand tremors, manifested during the Veteran's active service from August 1980 to July 1995, service connection for bilateral hand tremors is warranted.

B. Right Shoulder Disability

DJD is encompassed by the broader term arthritis, and is therefore considered a chronic disease for VA purposes.  38 U.S.C.A. § 1101. Therefore, service connection based on continuity of symptomatology is applicable in this case. Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). The Veteran was diagnosed with mild degenerative changes of the right shoulder in July 2012. 

Service treatment records reflect that the Veteran reported right shoulder pain during his period of service from January 2009 to April 2011 on his January 2011 medical assessment and report of medical history, which was conducted just prior to his separation from service. Further, the Veteran has consistently and credibly reported that right shoulder pain both had its onset in service in approximately 2009 and has been persistent since. There is no evidence of record that the Veteran's in-service statements concerning right shoulder pain are not credible, and he is competent to report both the onset of lay-observable symptoms, such as pain, as well as its persistence since that date. Jandreau, 492 F.3d at 1377. As such, these statements are entitled to significant probative weight.

Post-service treatment records reflect that beginning in May 2012, the Veteran reported right shoulder pain for approximately three years. Since that record, VA and private treatment records reflect complaints of right shoulder pain in May 2012, September 2012, October 2013, January 2014 and February 2016, as well as in a November 2013 VA gulf war examination. However, complaints of shoulder pain were not noted in a May 2011 VA initial assessment.

The Board notes that VA obtained medical opinions concerning the etiology of the right shoulder disability in July 2012 and January 2015. The July 2012 examiner stated that the current degenerative arthritis was less likely than not due to service based on the fact that the Veteran only complained of shoulder pain once in service, and that he did not endorse shoulder pain in May 2011. However, this opinion did not consider that the Veteran in May 2012 endorsed a history of shoulder pain dating roughly to 2009, nor did it consider the lay statements indicating the shoulder pain had been persistent since approximately 2009. As such, this opinion is entitled to zero probative weight. Dalton v. Peake, 21 Vet. App. 23 (2007).

The January 2015 examiner stated that the noted right shoulder rotator cuff tear was not related to service was not related to his service, based on the Veteran's  However, the examiner appears to have focused predominantly, if not entirely, on the absence of a diagnosis of a right shoulder disability and the lack of corroborating evidence of the Veteran's claimed in-service event, as opposed to considering the repeated subjective complaints of right shoulder pain made by the Veteran during his service from January 2009 to April 2011. It further indicated that the shoulder injury was more likely due to the Veterans history of heavy labor post service. However, the opinion did not address the Veteran's credible statements concerning persistent since service, the January 2011 endorsement of shoulder pain in service, or the etiology of the alternative diagnosis of right shoulder degenerative arthritis. Thus, the opinion is entitlement to zero probative weight. Id.

Based on the foregoing, the Board finds that the competent and credible evidence of record establishes that the current right shoulder traumatic arthritis had its onset in service and that it has been continuous since. The Veteran's lay statements concerning in-service shoulder pain and its persistence since service are both competent and credible, and are corroborated by the majority of the VA treatment records associated with the claims file. Jandreau, 492 F.3d at 1377. While both VA opinions were negative, neither opinion adequately addressed the Veteran's consistent complaints of right shoulder pain since service. Therefore, service connection for right shoulder degenerative arthritis is granted. 38 C.F.R. § 3.303(b).

ORDER

The application to reopen the claim for service connection for bilateral familial hand tremors is granted.

Entitlement to service connection for bilateral familial hand tremors is granted.

Entitlement to service connection for right shoulder traumatic arthritis is granted.



______________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs