Citation Nr: 1801374 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 10-08 281 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for tremors, including as due to exposure to herbicide agents and/or as secondary to service-connected ischemic heart disease. REPRESENTATION Appellant represented by: Robert C. Brown, Attorney WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from December 1970 to April 1972, which included service in the Republic of Vietnam. The Board notes the Veteran also served on active duty from September 1972 to November 1975, however, he is not entitled to VA benefits for this period of service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in December 2014. A transcript of that hearing is of record. In February 2015 and February 2017, the Board remanded the current appellate claim for further development FINDINGS OF FACT 1. The competent medical evidence does not reflect the Veteran currently has Parkinson's disease, Parkinsonism, or a Parkinson-like syndrome. 2. The preponderance of the competent medical and other evidence of record is against a finding the Veteran currently has a chronic disability manifested by tremors that was incurred in or otherwise the result of active service, to include his presumed exposure to herbicide agents. 3. The preponderance of the competent medical and other evidence of record is against a finding the Veteran's tremors were caused or aggravated by his service-connected ischemic heart disease. CONCLUSION OF LAW The criteria for a grant of service connection for tremors, including as due to exposure to herbicide agents and/or as secondary to service-connected ischemic heart disease, are not met. 38 U.S.C.A. §§ 1110, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board acknowledges that the Veteran's attorney contended in a September 2017 statement that the adjudication of the claim below was not in accord with an April 2016 report from the National Academy of Medicine (NAM), formerly the Institute of Medicine, which found that, due to changing diagnostic criteria over the years, any presumptive relationship established between exposure to herbicides and Parkinson's disease should be broadened to include Parkinsonism and Parkinson-like syndrome. However, as discussed in greater detail below, the Board finds that the opinions expressed by a recent May 2017 VA examiner are consistent with the recommendations of this report. The Veteran has not specifically identified any deficiency with respect to the findings of the May 2017 VA examination itself to include the examiner's qualifications to provide competent medical evidence. Moreover, it notes not appear he has identified any other current deficiency regarding the notification and assistance he has received in this case or in the conduct of the December 2014 Board hearing. Accordingly, the Board need not search for, or address, any such argument. See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015). The Board will therefore proceed to the merits of the appeal. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (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 or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In this case, the Veteran has essentially contended that his tremors are due to in-service exposure to herbicide agents. Further, in the alternative, he has contended it is secondary to his service-connected ischemic heart disease. The Board notes that the Veteran is presumed to have been exposed to herbicide agents while in the Republic of Vietnam during his first period of active duty. See 38 U.S.C.A. § 1116. Agent Orange is generally considered an herbicide agent and will be so considered in this decision. Further, 38 C.F.R. §§ 3.307, 3.309(e) provide that service connection is to be established on a presumptive basis for certain conditions such as Parkinson's disease based upon such exposure. As noted above, NAM recommended in April 2016 that Parkinson's disease should be broadened to include Parkinsonism and Parkinson-like syndrome. The Board finds that while the Veteran is competent, as a lay person, to describe visible symptoms of tremors, Parkinson's disease and related-conditions involve a complex disease process that generally requires competent medical evidence to diagnose. Here, nothing on file shows that he has the requisite knowledge, skill, experience, training, or education to render a medical opinion. As such, his assertions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). A thorough review of the competent medical evidence of record does not reflect the Veteran has been diagnosed with Parkinson's disease, Parkinsonism, or a Parkinson-like syndrome. Further, VA examinations in November 2015 and May 2017 explicitly found he did not have Parkinson's disease. While the Board previously determined in February 2017 that the November 2015 VA examination was deficient in that it did not adequately address whether he had a tremor disorder that was caused or due to military service, there was no deficiency identified with respect to the determination the Veteran did not have Parkinson's disease. Moreover, the May 2017 VA examiner explicitly found that the Veteran has an essential tremor only, that his essential tremor was a separate and distinctly different condition from Parkinson's, and provided details how his tremors differed from those associated with Parkinson's. As noted above, the Veteran has not specifically identified any deficiency with respect to the findings of the May 2017 VA examination itself to include the examiner's qualifications to provide competent medical evidence. Therefore, the Board concludes that the May 2017 VA examiner's findings reflect the Veteran's tremors do not constitute the type of Parkinson's-like condition contemplated by the broadened definition recommended by NAM in April 2016. Consequently, the Board concludes the Veteran is not entitled to a grant of service connection pursuant to the presumptive provisions of 38 C.F.R. §§ 3.307, 3.309(e). The Board acknowledges that the availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, the Board also observes that the Veteran's service treatment records for his December 1970 to April 1972 period of active duty do not contain any entries showing a diagnosis of or treatment for tremors to include his April 1972 expiration of term of service examination. Further, there is no indication of tremors on the subsequent August 1972 entry examination for his second period of active duty from September 1972 to November 1975, nor did he indicate such on a concurrent Report of Medical History. As noted in the Introduction, the Veteran is not entitled to VA benefits for the September 1972 to November 1975 period of service. In any event, the first competent medical evidence of tremors appears to be years after separation from service. In view of the foregoing, the Board finds that competent medical evidence is necessary to link the Veteran's current tremors to his first period of active duty. No competent medical evidence is of record links the Veteran's current tremors to his first period of active service. In fact, the May 2017 VA examiner provided an opinion against such a finding. The Board notes that this examiner was familiar with the Veteran's history from review of the VA claims folder, the opinion was not expressed in speculative or equivocal language, and was supported by stated rationale. In pertinent part, the examiner noted that there was a paucity of medical literature linking essential tremor to Agent Orange exposure; and that etiology of essential tremors was unclear, but had been linked to a genetic mutation and age was a risk factor. The Board finds this opinion to be persuasive and entitled to significant probative value in the instant case. The Veteran's attorney contended in the September 2017 written statement that the April 2016 NAM report envisioned a burden-shift from the Veteran to VA, with VA having to prove that the Veteran's tremors came from some causal agent other than herbicides. (Emphasis in original). However, even if the law mandated such a burden-shift, the Board has already determined that the May 2017 VA examiner's findings reflect the Veteran's tremors are not consistent with the type of broadened definition for Parkinson-like condition contemplated by the April 2016 NAM report. Further, the examiner also addressed whether the Veteran's tremors were otherwise directly related to service, to include the fact that there was a paucity of medical literature linking essential tremor (the Veteran's diagnosed condition) to Agent Orange exposure. As such, the Board finds that this medical examination and opinion addresses the issues identified in the April 2016 NAM report. For these reasons, the Board concludes the preponderance of the competent medical and other evidence of record is against a finding the Veteran currently has a chronic disability manifested by tremors that was incurred in or otherwise the result of active service, to include his presumed exposure to herbicide agents. As the preponderance of the evidence is unfavorable, the benefit of the doubt doctrine is not for application. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). As to the Veteran's contention of secondary service connection, the Board notes that service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). However, the effect one disability has upon another involves complex medical issues which generally require competent medical evidence to resolve. Further, this finding is supported by Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) in which the Federal Circuit held in the context of a claimant contending secondary service connection that the claimant's own conclusory generalized statement that his service illness caused his present medical problems was not enough to entitle him to a medical examination. If such a contention is not sufficient to warrant a medical examination, it is clear that it is not sufficient to warrant a grant of service connection. In view of the above, the Board finds that competent medical evidence is required to support the Veteran's contention of secondary service connection. No competent medical evidence supports this contention. Moreover, the May 2017 VA examiner provided an opinion against the Veteran's tremors being secondary to his ischemic heart condition. The examiner noted that the two conditions were separate and medically unrelated. In addition, the examiner noted that the Veteran used the medication metoprolol for his heart and tremors, but stated this does not indicate any causal relationship between his tremors and his heart; rather this was only indicative of the multiple uses for metoprolol. Moreover, the examiner stated there was insufficient evidence of aggravation of the essential tremors; and there has been no permanent worsening beyond natural progression as the records and exam demonstrate that the essential tremors were following typical, expected course. Thus, the Board finds the examiner's opinion regarding secondary service connection to also be persuasive and entitled to significant probative value. For these reasons, the Board concludes the preponderance of the competent medical and other evidence of record is against a finding the Veteran's tremors were caused or aggravated by his service-connected ischemic heart disease. Thus, benefit sought on appeal must be denied. ORDER Service connection for tremors, including as due to exposure to herbicide agents and/or as secondary to service-connected ischemic heart disease, is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs