Citation Nr: 1800987 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 13-10 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for hand tremors. ATTORNEY FOR THE BOARD P. Yoffe, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1990 to June 1991, December 1995 to August 1996, April 2009 to July 2009, and August 2009 to August 2010, as a military policeman in the U.S. Army National Guard, including service in Southwest Asia. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2010 decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Jackson, Mississippi. The Board remanded the claim in February and December 2016 and the claim is again before the Board. In the December 2016 decision, the Board denied service connection for tremors as due to an undiagnosed Gulf War Illness (8 C.F.R. § 3.317). Therefore, this theory will not be considered again. In December 2017, the RO associated additional VA outpatient treatment records in the file subsequent to the most recent October 2017 supplemental statement of the case. As the records are cumulative of evidence already considered and not pertinent, the Board may proceed with a decision. 38 C.F.R. § 20.1304 (2017) FINDINGS OF FACT 1. Essential hand tremors were not manifest in service and are not attributable to service. 2. Essential hand tremors are not related (causation or aggravation) to a service-connected disease or injury. CONCLUSION OF LAW Essential hand tremors were not incurred in or aggravated by service and are not proximately due to or a result of a service-connected disease or injury. U.S.C. §§ 1110 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Compliance with Prior Remand In the February 2016 and December 2016 Board remands, the Board instructed that an examination or medical opinion be undertaken to establish the etiology of the Veteran's hand tremors, including as caused or aggravated by several service-connected disabilities. An opinion having been provided regarding these issues, the Board's prior remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5107, 5126 (2014); 38 C.F.R. §§ 3.159, 3.326 (2017). The Veteran and his representative have not raised any argument(s) with respect to the adequacy of notice and assistance. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Therefore, the appeal may be considered on the merits. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110 (2012). To establish a right to compensation, a Veteran must show: (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. 38 C.F.R. § 3.303(a); see also 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 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). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Tremors The Veteran has an essential tremor, and he contends that he had tremors starting in the early 1990s and that tremors were caused by his service in the Persian Gulf War. Alternatively, the Veteran states his tremors are secondary to his service-connected disabilities of the neck, right shoulder, and back. VA treatment and service treatment records post-2004 (when the Veteran first reported tremors to the VA) contain notations of tremors throughout the period on appeal, with the Veteran giving a start date sometime in the early 1990s. March and May 1991 Reports of Medical Examination noted normal clinical evaluation of both the upper extremities and the nerve system. The Veteran's March 1991 Report of Medical History did not list tremors or related issues. Treatment records from the period of service do not list any reports of tremors. VA treatment records first report tremors in June 2004 telecare note. At that time, the Veteran stated he had tremors since 1991, during or shortly after Desert Storm, and that they had recently worsened. An August 2004 VA treatment note reported that the Veteran reported hand tremors since 1992 with worsening for last 2.5 years and difficulty holding a cup of coffee, writing, and hunting, but did not affect work and he could type. He reported that he noticed tremors about six months after Desert Storm and that his boss noticed his head "twitching" and "pulling" 2-3 months ago. VA Treatment records in August 2004 reported shaking hands, right more than left, no head twitching noted. The Veteran first was examined for tremors in October 2004. He reported that he had tremors since Desert Storm in 1991, which had gotten worse recently. After neurological testing, assessment was "No pronator drift, fine tremors of bilateral UE tongue and head made worse with intention," and "appears to be tremors related to anxiety however with the progression would need to [rule out] Wilsons disease or other CNS causes of tremor." A December 2005 VA addendum opinion noted "Alert and oriented. cn II-XII in intact. [M]otor-4+/4+ bilateral cer[e]bellar-intact DTRs - 4+/4+ bilaterally." Tremors of the hands and head were noted. A January 2006 neurological consultation note reported worsening tremor since last visit and that he had difficulties with writing, drinking, and a tremor was shown in fine movements. After objective neurological finding (the same as the above), assessment was "likely idiopathic essential tremor." An MRI in March 2006 of the brain had findings of normal ventricles, sulci, cisterns, no mass effect or midline shifts, no intra-axial or extra axial fluid collections, no gross signal abnormality, posterior fossa unremarkable, and cistern well-visualized. Diffusion weighted images showed no evidence of restricted diffusion suggestive of acute stroke or cytoxic edema. Paranasal sinuses and bilateral mastoid air cells were clear. Assessment was "negative for intracranial abnormalities," cannot rule out anxiety relationship. An August 2011 Shoulder and Arm Conditions Disability Benefits Questionnaire (DBQ) reported that the Veteran claimed "his right hand shakes when he holds Objects [and] this began after the first shoulder surgery." In the August 2011 DBQ, the Veteran reported he began to have shoulder pain in 2009 and he had a right shoulder operation in May 2010. The examiner noted that "review of CPRS shows the Veteran had benign essential tremor that interfered with his writing in the year 2006." In a September 2011 VA examination, the Veteran reported that his tremors had started during his service in Desert Storm. The Veteran reported the tremor had gotten worse since a shoulder injury in 2009 or 2010. The Veteran described the tremor has causing him to be unable to hold coffee or eat soup and that he had illegible handwriting and could not handle button or lace his shoes and other fine motor activities required the use of both hands and had intermittent numbness from wrist to finger of both hands, usually bilaterally. Examination found cranial nerves II-XII were intact, with motor strength at 5/5 and normal tone, bulk, dexterity, and coordination. The Veteran had postural tremor, occurring with activity and more noted on the right compared to left. There was some head titivation. His handwriting was hard to decipher. Sensory was intact and reflexes were 1 or 2+ and equal. Examiner diagnosed essential tremor, moderate and there was no evidence that tremor was incurred or caused by service and no evidence of aggravation. The examiner found that medical records showed occurrence between 2004 and 2006. A May 2012 Mississippi National Guard examination noted intermittent head tremor and intermittent tremor of both forearms and hands, worse on intention. Extension of the right shoulder found right upper limb tremor, more in hand and forearm. The military examiner noted that the tremor was essential and that there was no line of duty record except for a shoulder injury in 2009. In a June 2012 neurological note, the Veteran's neurological findings were the same as in the September 2011 examination. The Veteran had a "prominent postural tremor that comes out with activity, much more noticeable on the right. There is also some head titubation. Sensory is intact to fine touch, temperature, vibration, and position." A June 2012 Shoulder and Arm DBQ reported that the Veteran had issues with his right arm and that he felt his "[t]remor is worsening in this extremity as well. During his last [s]houlder exam, an MRI of his C-Spine was ordered which did show some pathology in the C5-C7 levels, R>L, which could be contributing to this problem." A December 2013 VA Central Nervous System and Neuromuscular Diseases DBQ noted that the Veteran had an essential tremor. The Veteran's medical history showed treatment for tremors at the VA since 2004, worsening in 2006. The Veteran reported "tremor first started in Desert Storm. It wasn't a problem then. It got severe after his shoulder injury and subsequent surgeries in 2009-10. The tremor involves both hands, but is much worse on the right." He had difficulty holding things or doing fine activity tasks. He had "mild shaking noted with speech; however, [speech] is completely intelligible." All responses "[c]onditions, signs and symptoms" were negative and he had a neurological examination (5/5 in all areas) and 2+ (normal) for deep tendon reflexes, with no muscle atrophy. Remarks section stated "Veteran noted to have clinical findings of essential tremor, moderately severe in nature and R>L. Examiner unable to associate any nexus between Veteran's service and his essential tremor. By his present account, the tremor worsened to present levels and continues to progress following shoulder injury, but medical records indicate this occurred in between 2004 and 2006. Essential tremor is known to worsen over time." An August 2015 VA opinion reviewed the medical history and reported that the same as above, with an additional report that "[i]t can occur in old age and is identified as senile tremor, as a genetic disorder and identified as familial tremor, or can be sporadic. Age at onset is variable. There was no evidence of essential tremor in service. As such, it was not incurred in service. There is no scientific evidence linking essential tremor to [G]ulf [W]ar service." A March 2016 VA Central Nervous System and Neuromuscular Diseases DBQ noted the Veteran had an essential tremor. The Veteran's medical history reported treatment at the VA since 2004, worsening in 2006. The Veteran reported "tremor started around 1993 in both hands while overseas. He states one of his buddies developed the same problem there. He also has friends going to Vanderbilt that were deployed being treated for the same condition." The examiner did not notice tremor in the Veteran's voice, but noticed tremor in the head and legs. The Veteran reported that he had a DatScan that ruled out Parkinson's. The Veteran's central nervous system condition required continuous medication for control. All responses "[c]onditions, signs and symptoms" were negative and he had a neurological examination (5/5 in all areas) and 2+ (normal) for deep tendon reflexes, with no muscle atrophy. The Veteran's other pertinent physical finding were "[n]ormal gait and station with good heel/toe/tandem walk. Motor strength is 5/5 with normal tone, bulk, dexterity, and coordination. He has prominent postural tremor that comes out with action, mild head titubation. Sensory is intact to fine touch, temperature, vibration, and position. Reflexes 2+ and =." The Veteran had difficulty with fine hand control and gross hand control. The remarks section noted: Essential tremor, rather severe, and apparently refractory to treatment. This is not an undiagnosed illness. It is a diagnosable single symptom illness, but the etiology is only partially understood and is still under active investigation. It is a disorder with a clear and specific diagnosis although the findings overlap with familial tremor and senile tremor. In a review of 22 studies concerning neurological issues in gulf war veterans in 4/2008 (http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1569625/) tremor is only briefly mentioned in one study. In 1000 Gulf War Veterans, only 2 were diagnosed with essential tremor. This low incidence (0.2%) is no greater than the general population (1.5%) making an association less likely as not. VA medical treatment records after the March 2016 examination report mild resting tremor. A September 2016 VA mental health note reported "increased [T]opamax . . . has almost stopped the tremors." An August 2017, the Veteran had an Amyotrophic Lateral Sclerosis (Lou Gehrig's disease) DBQ. The examination noted "no," "none," or "normal" for all symptoms and testing, including strength and deep tendon reflexes. The examiner noted a MRI showed normal findings. The examiner noted that "[the Veteran] ambulates with a normal gait. Tremors of the hand and lower extremities are not active during this examination. He denies associated (sic) with his shoulder, neck or back injury in that tremor condition predates these injuries. [The] Veteran only has a diagnosis of Essential Tremors. This has been confirmed in 2015 and 2016 Chief of Neurology visits with Veteran taking Topamax for treatment. There is no evidence of record for current or historical diagnosis of ALS/Amyotrophic Lateral Sclerosis." An Independent Medical Opinion (IMO) regarding secondary service connection was obtained. The examiner was a VA medical consultant. The September 2017 IMO noted that the Veteran's history and lay statements. The physician giving the IMO noted the Veteran had essential tremors, defined as "[r]hythmic oscillations of a part of the body due to intermittent muscle contraction." The IMO reported that the tremors pre-dated the service-connected neck, shoulder, and back injuries. The IMO additionally ruled out chemical exposure (the Veteran denied chemical exposure), and reported that, based on a review of the medical records, the examiner could rule out a relationship to a spinal disability and noted normal speech, normal muscle strength, and normal deep tendon reflexes. The examining physician reported, therefore, "[i]t is LESS LIKELY THAN NOT that the Veteran's claimed Essential Tremors relates to and/or was aggravated by his service connected cervical spine and/or right shoulder disabilities because of the lack of sufficient objective medically, orthopedically and/or neurologically based, clinical evidence to support aggravation of the tremors and/or nexus between service connected cervical spine and/or right shoulder disorders." The Veteran, in his claim and medical documents, reported a date sometime in 1991 or 1992, at the earliest, for the emergence of hand tremors. See, e.g., October 2015 correspondence ("In 1994[,] I went back to the VA when the tremors began to have an effect on my job. I continued to go back as the tremors worsened."); March 2013 private treatment records (noting tremors started over 20 years prior, i.e., about 1991 or 1992). Alternatively, the Veteran states his tremors are secondary to his service-connected disabilities of the neck, right shoulder, and back. The Board notes that the Veteran had service in both the Mississippi National Guard as well as active duty service. According to National Guard records, the Veteran did not have any service, active duty for training, or inactive duty for training from March 1997 to May 2008. The Veteran himself states his tremors started either in service in the Gulf War or shortly thereafter or are secondary to a service connected disability, and not that it occurred in active or inactive duty for training. The Veteran has had numerous medical opinions regarding the onset of tremors reported above. All opinions were provided by medical professionals, and the IMO, because of its recentness and the ability to review the entirety of the record, is highly probative. The IMO provider reviewed the Veteran's file, all available electronic records, and medical records. The examiner described the Veteran's symptoms in detail and provided a reasoned analysis. A medical opinion will be considered probative if it includes clear conclusions and supporting data with a reasoned analysis connecting the data and conclusions. A medical opinion that is factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Although the June 2012 VA DBQ noted, without rationale, that the Veteran's service connected spine "could be contributing to this [tremor] problem," all the other medical evidence noted tremors pre-existed the disabilities that the Veteran claimed caused or aggravated the tremors and that there was simply "no sufficient objective medical[] . . . [or] clinical evidence" to support such a contention. The medical evidence is therefore against the claim, even though one vague statement in noted a possible contribution between tremors and the spine. To the extant there is any conflict, the more probative medical opinion is the IMO, which addressed the Veteran's claim, and provided a conclusion based on supporting data, as opposed to a vague and conclusory statement in the June 2012 VA DBQ with no supporting rationale or information. The Veteran has also provided lay statements regarding the onset of his symptoms in service or a relationship to service or service-connected disabilities. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability subject or symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran is competent to describe his symptoms of tremors (i.e., rhythmic motion). However, Veteran's statements are not credible and contradict the evidence of record. This symptoms of were first reported in 2004, several years after the Veteran's National Guard in 1997 and prior to his return to National Guard service in 2008 . There are no notations of treatment or other evidence between the early 1990s (when the Veteran first reported he noticed tremors) and 2004. Rather, the Veteran denied tremor or other problems in his medical history in March 1991 and no findings were made of tremors in examinations in March and May 1991. The Board notes that the etiologies of tremors in general are "only partially understood and is still under active investigation." However, service treatment records from later years in the 1990s do not report tremors. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006) (noting the Board may weigh the absence of contemporaneous medical evidence as a factor in determining credibility of lay evidence). This is especially important, given that tremors are easily observable and would be readily apparent to a medical professional. As such, while the Board has considered the lay statements, as they lack credibility, they do not outweigh the various medical opinions recounted above, which were based on a Veteran's medical records and relevant medical studies. In short, the credible and probative evidence establishes that the Veteran's essential tremors were not manifest during service and that they are not due to service. The lay assertions of in-service onset are not credible. In light of the probative opinions, particularly the IMO, the Board concludes that the preponderance of the evidence is against the claim for entitlement for service connection for tremors. The benefit-of-the-doubt doctrine is therefore not applicable. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for essential tremors is denied. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs