Citation Nr: 1704591 Decision Date: 02/15/17 Archive Date: 02/24/17 DOCKET NO. 12-35 352 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for essential tremors of the hands as due to herbicide exposure only. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD C. Smith, Associate Counsel INTRODUCTION The Veteran served honorably in the U.S. Air Force from December 1966 through September 1970, with 11 months foreign service. This case comes to the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction resides with the RO in Nashville, Tennessee. In July 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ), and a transcript of that proceeding has been associated with the electronic claims folder. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Virtual VA contains VA treatment records from October 2011 to February 2015, but all other documents are either irrelevant or duplicative of those in VBMS. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, remand is required to secure an adequate VA examination and to undertake additional efforts to verify whether the Veteran stepped foot in Vietnam. When VA undertakes to obtain an opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A mere medical conclusion is insufficient to permit the Board to make an informed decision regarding the probative value of that opinion; rather, supporting explanation must be provided. Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). Additionally, if a claimed disease is not a listed presumptive disease, the Veteran may still establish service connection for the disease by (1) showing that the disease actually occurred in service; or (2) by submitting evidence of a nexus between the disease and his exposure to herbicides during military service. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994); Stefl, 21 Vet. App. 120. In September 2015 the Board remanded this matter to the AOJ with instructions to afford the Veteran a VA examination, to determine whether the Veteran stepped foot in Vietnam, and for issuance of a supplemental statement of the case. The Veteran was afforded a VA examination in November 2015. Upon review of the Veteran's medical history, the examiner noted prior diagnoses of essential tremor, and that the Veteran had intention tremor consistent with essential tremor. The examiner opined that the Veteran's claimed condition was unrelated to his period of service. In support of that opinion, the examiner noted that the Veteran did not have a diagnosis of Parkinson's disease, but rather intention tremor consistent with essential tremor, and that "essential tremor is not established in the literature or in the treatment records as being due to Agent Orange." This opinion is inadequate as it is based in part on a lack of medical treatment records showing whether the condition was due to Agent Orange. In this regard, it is conclusory as this is what the examiner was to opine upon. The examiner did not address whether in their medical opinion, in this particular Veteran's case, his essential tremors could otherwise be due to Agent Orange exposure. In addition, the examiner erroneously focused on whether the Veteran had a diagnosis of Parkinson's Disease, however the issue is entitlement to service connection for tremors of the hands. The Board's September 2015 decision/remand already made a formal finding of fact that the Veteran did not have Parkinson's Disease. Accordingly remand is required for an adequate VA examination. Next, pursuant to the Board's September 2015 remand, the AOJ sent a request to the JSRRC to determine whether the Veteran stepped foot in Vietnam between May 1, 1968 and June 30, 1968. An April 2016 JSRRC response stated that due to the lack of Air Force unit historical records available to the JSRRC, they were unable to determine whether the Veteran was exposed to herbicides during that period. JSRRC stated that those records and supporting documents for Air Force units were in the custody of the Air Force Historical Research Agency. Nothing in the record shows that the AOJ attempted to obtain those records from the Air Force Historical Research Agency. In addition, the Veteran reported that he stopped in Saigon, Vietnam on several occasions as it was an intermediate stop on flights to and from Okinawa, Japan as well as flights back to the United States. Specifically, the Veteran reported he stopped in Saigon on or around the following dates: February 21, 1969; May or June 1969; August 27 or 28 1969; and January 6, 1970. The JSRRC record request following the Board's remand only requested records from May 1968 through June 1968, which was not a period identified by the Veteran. Accordingly the Board finds that all necessary development has not been conducted. On remand it is necessary to request any relevant unit historical records or other potentially relevant records from the Air Force Historical Research Agency for the dates identified by the Veteran. In April 2016 a JSRRC coordinator issued a memorandum on a formal finding of lack of information required to corroborate the Veteran's allegation of exposure to herbicides from February 1969 to January 1970. In support of the finding that additional attempts to locate those records would be futile, the memorandum noted that the Veteran did not have a diagnosis of Parkinson's Disease related to Agent Orange. That was in error, as the issue is one of entitlement to service connection for essential tremors as directly, rather than presumptively, related to Agent Orange. Also, as noted above the development undertaken to locate those records was insufficient. On remand, following the additional development identified in the preceding paragraph, it is necessary to secure another formal finding as to whether the Veteran stepped foot in Vietnam. Accordingly, the case is REMANDED for the following action: 1. Contact the Air Force Historical Research Agency to determine whether any records exist supporting the Veteran's claim that he stepped foot in Saigon, Vietnam during intermediate flight stops on or around February 21, 1969; May or June 1969; August 27 or 28 1969; and January 6, 1970. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. After completing the above development, prepare a memorandum regarding a formal finding as to whether the Veteran stepped foot in Saigon, Vietnam during an intermediate flight stop on or around February 21, 1969; May or June 1969; August 27 or 28 1969; and January 6, 1970. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his diagnosed essential tremors. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner is requested to provide the following information and opinions: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's diagnosed essential tremors are etiologically related to herbicide exposure, despite the disability not being on the presumptive list? The examiner must presume, for purposes of this examination only, that the Veteran was exposed to Agent Orange during his period of active service. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2016). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above action, 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 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 Veteran 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 2014). _________________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).