Citation Nr: 1751792	
Decision Date: 11/13/17    Archive Date: 11/22/17

DOCKET NO.  10-01 116	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for tremors.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran




ATTORNEY FOR THE BOARD

J. E. Miller, Associate Counsel


INTRODUCTION

The Veteran served in the U.S. Army from November 1960 to November 1962 and from September 1983 to August 1989. He also served in the Army National Guard of the Commonwealth of Puerto Rico.

Effective February 7, 2017, the Veteran is in receipt of a 100 percent combined schedular evaluation due to service-connected disorders.  

This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2009 decision of the St. Petersburg, Florida, Regional Office (RO). In January 2012, the Veteran was afforded a Travel Board hearing before a Veterans Law Judge. A hearing transcript is in the record. In June 2012, April 2016, and April 2017, the Board remanded the appeal for additional action. In June 2017, the Veteran was informed that the Veterans Law Judge who had conducted his January 2012 Board hearing was no longer employed at the Board and he, therefore, had a right to an additional hearing before a different Veterans Law Judge. He was informed that he had 30 days to respond or the Board would assume he did not want another hearing. The Veteran did not respond. Therefore, the Board will adjudicate the Veteran's claim.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014).



FINDING OF FACT

With resolution of the factual doubt in his favor, tremors were caused by the Veteran's service-connected disorders.


CONCLUSION OF LAW

The criteria for service connection for tremors have been approximated. 38 U.S.C.A. §§ 1110, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. 
§§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.326(a) (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C.A. § 1110, 1131. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310 where it is demonstrated that a service-connected disorder has caused or aggravated a nonservice-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). 

Among the Veteran's service-connected disorders are residuals of transient ischemic attacks (TIA); major neurocognitive disorder due to mixed probable vascular disease and possible Alzheimer's disease; residuals of a cerebrovascular accident (CVA) with voiding dysfunction, difficulty swallowing, right and left upper extremity and right and left lower extremity muscle weakness with abnormal gait, right frontal and parietal scar, left frontal scar, and speech impairment; hypertension; bilateral pseudophake; and post-operative residuals of a cholecystectomy with scar.

The Veteran has tremors and the Board has attempted to ascertain whether they may be linked to service or to any other service-connected disorder or whether they represent a separate disorder or symptom. The developed medical evidence is uncertain. However, various medical evidence has suggests that the tremors may be linked to service-connected disorders. Resolving all doubt in favor of the Veteran, the Board finds that the Veteran's tremors are caused by his service-connected TIA, major neurocognitive disorder, and CVA. Therefore, service connection is warranted.

The Board expresses no opinion regarding the severity of the disorder. The RO will assign an appropriate disability rating on receipt of this decision. Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms "compensation," "rating," and "service connection" as although related, each having a distinct meaning as specified by Congress). 

Resolution of the question of whether a diagnosed disorder may be service connected involves determining whether it is linked to service - regardless of whether it may be compensable under the rating schedule. Conversely, the issue of whether a separate disability rating may be assigned involves whether there are overlapping symptoms in two or more disorder.  The structure of Title 38 of the Code of Federal Regulations is illustrative, as it separates Part 3 containing provisions as to service connection (38 C.F.R. §§ 3.303 through 3.10)  as opposed to Part 4, entitled "Schedule for Rating Disabilities," containing the prohibition on pyramiding found in 38 C.F.R. § 4.14. In determining the appropriate rating, the RO will be guided by principles in 38 C.F.R. § 4.14 (the evaluation of the " same disability " or the " same manifestation " under various diagnoses is to be avoided) and Esteban v. Brown, 6 Vet. App. 259 (1994) (while pyramiding of disabilities is to be avoided pursuant to 38 U.S.C. § 1155  and 38 C.F.R. § 4.14 , it is possible for a veteran to have separate and distinct manifestations from the same injury permitting two different disability ratings). 


ORDER

Service connection for tremors is granted.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs