Citation Nr: 1754300	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  09-29 931	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cheyenne, Wyoming


THE ISSUE

Entitlement to service connection for a disorder manifested by muscle tremors.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Shamil Patel, Counsel


INTRODUCTION

The Veteran had active service in the U.S. Marine Corps from June 1983 to June 1987 and from March 1989 to March 1993.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which, in relevant part, denied service connection for muscle tremors.  Original jurisdiction has since been transferred to the RO in Cheyenne, Wyoming.

The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in April 2015.  The Board then remanded the matter for further development in June 2015 and April 2017.


FINDING OF FACT

Muscle tremors have not manifested to a compensable degree.


CONCLUSION OF LAW

The criteria for service connection for a disorder manifested by muscle tremors have not been met.  38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Applicable Law

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131 (2012).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) (2017).

The Veteran served at Base Camp Lejeune in North Carolina.  For background purposes, in the early 1980s, it was discovered that two on-base water-supply systems were contaminated with the volatile organic compounds (VOCs) trichloroethylene (TCE), a metal degreaser, and perchloroethylene (PCE), a dry cleaning agent.  The main source of TCE contamination was on-base industrial activities, while the main source of PCE was an off-base dry cleaning facility.  Benzene, vinyl chloride, and other VOCs were also found to be contaminating the water-supply systems.  These water systems served housing, administrative, and recreational facilities, as well as the base hospital, and the Department of the Navy estimates indicate that as many as 630,000 active duty personnel may have been exposed; the contaminated wells supplying the water systems were identified and shut down by February 1985.

During the pendency of the Veteran's claims, VA amended 38 C.F.R. § 3.307 and § 3.309 to provide that certain diseases will be presumed to have been incurred or aggravated in service for veterans, former reservists, and former National Guard members who served at Camp Lejeune for no less than 30 days.  The eight diseases in question are adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin's lymphoma, and Parkinson's disease.  See Diseases Associated With Exposure to Contaminants in the Water Supply at Camp Lejeune, 82 Fed. Reg. 4173 (January 13, 2017).  VA undertook a deliberative scientific process to determine whether available scientific evidence was sufficient to support a presumption of service connection for any health condition as a result of exposure to the chemicals found in the drinking water at Camp Lejeune.  At this time, however, there is insufficient medical and scientific evidence to establish a presumption of service connection for any disability beyond the eight conditions included in the rulemaking.  Id. at 4180.

VA also recognizes a National Academy of Sciences 2009 publication titled Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects.  This report lists additional conditions as having limited/suggestive evidence of an association with the contaminated water, including esophageal cancer, breast cancer, renal toxicity, hepatic steatosis, scleroderma, and neurobehavioral effects.

However, the Veteran has not claimed - nor does the record otherwise show - any of the above-listed conditions.  In particular, while the Veteran has claimed a condition manifested by muscle tremors, he has not been diagnosed with Parkinson's disease at any time despite several examinations.

The Veteran has also reported service in the Persian Gulf during the Persian Gulf War, and has suggested that one or more of his claimed disorders may be related to environmental exposures during such service.  His service records confirm that he was present in the Southwest Asia theater of operations during the Persian Gulf War, consistent with the provisions of 38 C.F.R. § 3.317(e)(1) (2017).

Service connection may be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 U.S.C. § 1117 (2012); 38 C.F.R. § 3.317 (a)(1).  In claims based on qualifying chronic disability, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service.  Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004).  To that end, the Board notes that laypersons are competent to report objective signs of illness.  Layno v. Brown, 6 Vet. App. 465 (1994).

A "qualifying chronic disability" for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service connection.  38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B).

"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification.  To fulfill the requirement of chronicity, the illness must have persisted for a period of six months.  38 C.F.R. § 3.317(a)(2), (3).  Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; and (12) abnormal weight loss.  38 C.F.R. § 3.317(b).

II.  Evidence

VA records dated July 2007 show the Veteran initially reported having problems with cramping in his back in the late 1990's, including muscle spasms when he was lying down.  He further reported that, over the past two years, he has had symptoms of locking of his bilateral hands.  This occurred twice per year lasting up to 45 minutes.  He also stated that he noted tremors in his legs over the past several years.  These occurred after activity only.  He noted that after 30 minutes of mowing his lawn, he would have tremors in the left leg for about 30 minutes.  A physical examination was within normal limits, and serum laboratory testing showed no abnormal findings or evidence of muscle inflammation.

In November 2007, he reported a history of muscle twitching.  Examination revealed no abnormalities.

The Veteran underwent a VA Gulf War examination in May 2014.  No tremors were noted during the 4-hour examination.  During a June 2014 VA examination, he reported that his hands shook when he held items and his thighs tremored when his legs were propped up.  A physical examination was unremarkable, and the examiner stated that the Veteran's clinical presentation did not warrant a diagnosis.  During a May 2017 VA examination, the examiner identified physical exertion as an identifiable trigger of symptoms.  She recorded normal findings, and stated that the Veteran's complaint of episodic muscle cramp/spasm with involuntary jerky movement triggered by physical exertion was quite nonspecific.

III.  Analysis

Initially, the Board notes that the matter was remanded for a VA examiner to comment whether the Veteran's condition was an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illness, a diagnosable chronic multisymptom illness with a partially explained etiology, or a disease with a clear and specific diagnosis and etiology.  The May 2017 VA examiner did not classify the Veteran's claimed condition as any of the above.  However, given that the Veteran has not been assigned any specific diagnosis, the Board finds that his condition represents an undiagnosed illness.

In order for service connection to be granted for this undiagnosed illness, the condition must have manifested either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more.  In this case, the Veteran was discharged from service in 1993 and his VA records show problems since "the late 1990's."  Therefore, his condition did not manifest during service in Southwest Asia.

In determining whether the condition manifested to a degree of 10 percent or more, it must be analogized to a diagnostic code within VA's schedule for rating disabilities.  

Muscle tremors could be analogous to convulsive tics, which are addressed under Diagnostic Code (DC) 8103.  38 C.F.R. § 4.124a.  A 0 percent rating is assigned for mild tics, and a 10 percent rating is assigned for moderate tics.  Terms such as "mild" and "moderate" are not defined in the rating schedule.  Rather, VA rating officials must evaluate the evidence and provide decisions which are equitable and just.  38 C.F.R. § 4.6.  Nevertheless, the Note accompanying DC 8103 states that ratings depend upon frequency, severity, and the muscle groups involved.

In this case, the Board has considered the Veteran's statements regarding his symptoms.  However, the absence of any objective findings during the appeal period, including during the 4-hour Gulf War examination, strongly suggest that these symptoms do not manifest with a frequency or severity consistent with a "moderate" tic.

Similarly, the Board has considered whether tremors are analogous to neurologic impairment of the peripheral nerves, which are rated under Diagnostic Codes 8510 through 8530.  Although different codes pertain to different nerves in the upper or lower extremities, a compensable rating is warranted under certain codes when there is mild incomplete paralysis of the nerve in question.  In rating peripheral nerve injuries, attention should be given to the relative impairment in motor function, trophic changes, or sensory disturbances.  Again, however, there are no objective findings of any such impairment during the appeal period.

Finally, the Board has considered a rating 38 C.F.R. § 4.73, which addresses muscle injuries.  Various muscle groups are assigned ratings for slight, moderate, moderately severe, or severe injuries.  For each muscle group, a moderate injury must be shown in order to receive a compensable rating.  Moderate injuries are defined under 38 C.F.R. § 4.56(d)(2).  Among other criteria, moderate injuries involve a history of a through and through or deep penetrating wound, as well as objective findings of some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue.  Not only is the Veteran's history not consistent with a moderate muscle injury, but again, the absence of any objective findings means the compensable level has not been met.

In sum, the Board acknowledges the Veteran's report of symptoms.  However, in order for service connection to be granted, his condition must manifest to a compensable level under VA's disability rating schedule.  Because a compensable level of symptoms has not been shown, service connection is not warranted in this case. 


ORDER

Service connection for a disorder manifested by muscle tremors is denied.




____________________________________________
M. TENNER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs