Citation Nr: 1806234 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 11-22 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for bilateral hand tremors, to include as manifestation of undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C. § 1117. 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include generalized anxiety disorder (GAD) and major depressive disorder (MDD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Baxter, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1987 to May 1987 and from September 1990 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico and a January 2012 rating decision from the RO in Montgomery, Alabama. The Board notes that the Veteran's claims have been transferred to the Montgomery, Alabama. In a September 2016 Board decision, the Board denied service connection for depression, anxiety, and insomnia as manifestations of undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C. § 1117. The Board remanded the claims of service connection for bilateral hand tremors, to include as manifestation of undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C. § 1117 and service connection for an acquired psychiatric disorder, to include generalized anxiety disorder, major depressive disorder, and posttraumatic stress disorder (PTSD). In August 2017, the RO granted service connection for PTSD. The claim for service connection for an acquired psychiatric disorder, to include generalized anxiety disorder, major depressive disorder, and posttraumatic stress disorder (PTSD) has been recharacterized as service connection for an acquired psychiatric disorder other than PTSD, to include generalized anxiety disorder (GAD) and major depressive disorder (MDD). FINDINGS OF FACT 1. The Veteran had active duty service in the Southwest Asia Theater of Operations during the Persian Gulf War. 2. There is credible and competent evidence from the Veteran that the symptoms of bilateral hand tremors manifested to a compensable degree within one year of discharge from service. 3. The Veteran does not meet the criteria for a diagnosis of a psychiatric condition other than PTSD. 4. The Veteran's current diagnosis of PTSD represents a progression of her anxiety disorder diagnosis. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hand tremors are met. 38 U.S.C. §§ 1110, 1131, 1117 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3, 309, 3.317 (2017). 2. The criteria for service connection for an acquired psychiatric disorder other than PTSD, to include GAD and MDD, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103A, 5107(b) (2012); 38 C.F.R. § 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) in September 2008 letter. 38 U.S.C. §§ 5100, 5102-5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2017). Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including her service treatment records, post-service treatment records, and VA examination reports. These claims were remanded in September 2016 to obtain outstanding VA medical records, outstanding private medical records, and afford the Veteran a VA examination for her mental health claim. In October 2016, private treatment records were obtained. In November 2016, records were obtained from the VAMC. Additionally, the Veteran was provided VA examinations in November 2016 and December 2016. Accordingly, there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in service or for preexisting disability aggravated during service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). Certain chronic diseases, including organic diseases of the nervous system, may be presumed to have been incurred in service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. That does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303 (b) (2017). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim. 38 C.F.R. § 3.303 (b) (2017). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptomatology applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309 (a)(2017); Walker v. Shinseki, 708 F.3d 1331(Fed. Cir. 2013). Because the Veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War, service connection may also be established under 38 C.F.R. § 3.317. Service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest 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. 38 U.S.C. § 1117 (2012); 38 C.F.R. § 3.317 (a)(1)(2017). The chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. 38 U.S.C. § 1117 (West 2012); 38 C.F.R. § 3.317 (a), (b)(2017). Pursuant to 38 U.S.C. § 1117, the definition of qualifying chronic disability includes (a) undiagnosed illness, (b) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, and (c) a diagnosed illness that the Secretary of VA determines in regulations prescribed under 38 U.S.C. 1117 (d) warrants a presumption of service-connection. 38 C.F.R. § 3.317 (a)(2)(2017) . Objective indications of a qualifying chronic disability include both signs, in a medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(3)(2017) . Signs or symptoms that may be manifestations of undiagnosed illness or a chronic multisymptom illness include: fatigue, unexplained rashes or other dermatological signs or symptoms, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the upper or lower respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 U.S.C. § 1117 (g)(2012). Bilateral Hand Tremors The service treatment records (STRs) are absent of complaints, findings, or diagnoses of hand tremors during service. On the Report of Medical Examination in June 1986, April 1987, March 1990, and March 1991 the clinical evaluation was essentially unremarkable, and no pertinent diagnoses were noted. The examiners indicated in the clinical evaluation that her upper extremities were normal. The March 1991 desert storm return examination was negative of any complaints, diagnosis, or treatment for a bilateral hand tremor condition. Thus, there is no medical evidence that shows that the Veteran suffered from a bilateral hand tremor condition during service. A July 2006 Gulf War Questionnaire shows that the Veteran reported tremors and shaking for the past 6 months or longer. In the August 2006 NMS medical records revealed that the Veteran was treated for bilateral hand tremors. The August 2006 private treatment record documented that the Veteran was seen for weight loss counseling. On examination, the clinician observed that she had an intention tremor and a mild resting tremor that she reported experiencing for many years. The clinician's assessment was resting tremor. In April 2011, the Veteran's private physician Dr. MD submitted a medical opinion letter. Dr. MD wrote that he felt her disability was a direct relation with her active service in the Gulf War. He indicated that he treated the Veteran for her bilateral hand tremor condition. In June 2011, the Veteran was afforded a VA examination for PTSD. The Veteran reported she had intermittent hand and finger tremors she associated with her anxiety. In October 2017, the Veteran was afforded a central nervous system and neuromuscular disease VA examination. The Veteran reported that she noticed that her tremors are more prominent when she was holding things and eating. The Veteran reported that the tremors started within six months after her return from the Persian Gulf. She indicated that she was evaluated for the same in 1995 by her primary care physician and no workup was done. The examiner noted that the family history was negative for tremors or Parkinson's disease. The examiner reviewed the Veteran's claims file, examined the Veteran, and interviewed the Veteran. The examiner noted that there was a fine tremor of both hands when she was holding a napkin box, which was better after holding for a few minutes. The examiner diagnosed the Veteran with essential tremor. The examiner opined that the condition was a disease with a clear and specific diagnosis and was less likely as not related to a specific event experienced by the Veteran during service in Southwest Asia. The examiner commented that essential tremor was referred to as a familial tremor when there was a family history. The pathogenesis of essential tremor was mostly unexplained. There was a strong genetic component, at least for familial cases. A family history was present in 30 to 70 percent of patients with essential tremor and the proportion was as high as 80 percent among those with onset at or before the age of 40years. Having carefully considered the Veteran's claim in light of the evidence of record and the applicable law, the Board concludes that, resolving any doubt in the favor of the Veteran, that the evidence supports the finding that the current bilateral hand tremors where manifest to a compensable degree within one year after discharge from service and service connection is warranted. The Board finds that the Veteran has credibly stated that she experienced bilateral hand tremors within six months after discharge from service. The private medical records and the July 2006 Gulf War questionnaire show that she has consistently reported that she experienced the tremors for many years. The October 2017 VA examiner noted a diagnosis of essential tremor and while he noted such essential tremor may be from a family history, he also noted that the Veteran's family history was negative for tremors. The Veteran has credibly and competently reported tremor symptoms that can be characterized as a least mild. As essential tremors are considered as an organic disease of the nervous system and there is credible evidence that the condition was manifest to a compensable degree within one year after discharge, service connection for bilateral hand tremors is granted. Acquired psychiatric disorder, other than PTSD, to include GAD and MDD The Veteran contends that her depression and anxiety is connected to the stressful events she experienced while in Saudi Arabia. Service treatment records do not identify any psychiatric symptoms or complaints, nor are any behavioral or disciplinary problems indicated in service personnel records. Notably, the March 1991 Report of Medical History documented that the Veteran marked "no" for depression or excessive worry and nervous or any sort of trouble. Psychiatric treatment was not identified in the record until many years post-service. A June 2009 letter from Dr. MD indicated that the Veteran reported she had a nervous breakdown shortly after she returned from deployment. Dr. MD wrote that she was prescribed anti-depressants and for the most part, she had improved. In June 2011, the Veteran was afforded a VA examination. The Veteran reported daytime fatigue, isolation, panic attacks, difficulty sleeping, and memory problems. She indicated that her depression became a problem in 1997, but she had difficulty recalling the exact onset of symptoms. She reported while serving in Saudi Arabia and during that time, she felt helpless and fearful as a result of listening to the alarms that went off every night because of SCUD missile attacks and being unarmed for a period time due to the lack of bullets available. The examiner reviewed the claims file and interviewed the Veteran. The examiner diagnosed the Veteran with anxiety disorder with depressive features. In the April 2016 Mental Disorders DBQ provided by her private physician Dr. DM. Dr. MD diagnosed the Veteran with PTSD, MDD and GAD, noting "a history of trauma while serving in the military." the April 2016 DBQ addressed the Veteran's reported military history and also reflected the Veteran's specific symptomatology attributed to PTSD and those attributed to major depression. However, he did not provide any etiology opinion with regard to the diagnosed conditions. Furthermore, he indicated that there was no evidence available to review. In October 2017, a medical addendum opinion was obtained. The examiner addressed whether any currently diagnosed acquired psychiatric disorder other than PTSD including GAD and MDD was related to the Veteran's military service. The examiner reviewed the Veteran's claims file. The examiner indicated that an in-person examination was not necessary to complete the requested opinion. She noted that the Veteran had an initial PTSD VA examination in December 2016. The examiner reported that the Veteran's current symptoms were best described as PTSD, chronic. At the December 2016 VA examination, the only psychiatric diagnosis rendered was PTSD. The 2017 VA examiner opined that the Veteran did not meet the criteria for any other psychiatric condition to include GAD or MDD. She further commented that the Veteran was diagnosed with an anxiety disorder with depressive features in a June 2011 PTSD examination. She stated that the Veteran's current diagnosis of PTSD represented a progression of the anxiety disorder diagnosis that was diagnosed in June 2011. She opined that the Veteran did not meet the criteria for any other psychiatric disorder. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection for acquired psychiatric disorder other than PTSD, to include GAD and MDD, as the result of active service is not warranted. As noted above, a Veteran seeking disability benefits must establish not only the existence of a disability, but also a connection (nexus) between service and the disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In reaching these conclusions, the Board has carefully considered the Veteran's lay assertions. The Board acknowledges that, as a lay witness, the Veteran is competent to report her medical history and symptomatology. See Layno v. Brown, 6 Vet. App. 465, 469-79 (1994) (noting that personal knowledge is "that which comes to the witness through the use of his senses-that which is heard, felt, seen, smelled, or tasted"). Nevertheless, determining the potential causes of an acquired psychiatric disorder is a complex medical matter that is beyond the scope of lay observation. See id. Thus, determinations as to the etiology of both the Veteran's acquired psychiatric disorder to include GAD and MDD are not susceptible of lay opinion and require highly specialized training. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing that the question of whether lay evidence is competent and sufficient is an issue of fact that is to be addressed by the Board); Layno, supra. Therefore, the Veteran's lay assertions do not constitute competent evidence concerning the etiology of either her acquired psychiatric disorder to include GAD and MDD. See 38 C.F.R. § 3.159 (a)(1) (2017) ("Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions."). As to the findings of the private physician, the examiner noted diagnoses of PTSD, GAD and MDD but did not provide an etiology opinion with regard those conditions. Moreover, the Board observes that the private physician did not provide a rationale for the findings, nor indicate that it was based on a review of the claims folder or relevant medical history. In fact, the examiner indicated that no evidence was available for review. That further reduces the evidentiary weight of that examiner's findings. 38 C.F.R. § 4.1 (2011); Sklar v. Brown, 5 Vet. App. 140 (1993). The Board acknowledges that claims folder review is not a requirement for private medical opinions, and an opinion may not be discounted solely because the opining clinician did not conduct such a review. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board concludes that the private physician's opinion is insufficient outweigh the negative nexus findings of the October 2017 VA examiner's opinion. Furthermore, the October 2017 VA examiner made the findings with access to the private physician's opinion and provided contradictory findings after review of the file. In the absence of a current disability, there can be no grant of service connection under the law. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, the October 2017 VA psychologist opined that the Veteran did not meet the criteria for an acquired psychiatric disorder other than PTSD. Furthermore, the psychologist noted that while there had been a diagnostic impression of anxiety NOS in the past (qualified with a sub-threshold notation), it developed into diagnosed full threshold PTSD. Therefore, the Veteran does not have a current diagnosis of GAD and MDD. The preponderance of evidence is against the Veteran's claim and there is no doubt to be resolved. See 38 U.S.C. § 5.107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral hand tremors is granted. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include GAD and MDD is denied. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs